Ulster Cnty. Support Collection Unit ex rel. Beke v. Beke

• Decision Date: 14 March 2019
• Docket Number: 525933
• Citation: 170 A.D.3d 1347,96 N.Y.S.3d 376
• Parties: In the Matter of ULSTER COUNTY SUPPORT COLLECTION UNIT, ON BEHALF OF Annamaria BEKE, Respondent, v. Imre Arpad BEKE Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1347
96 N.Y.S.3d 376

In the Matter of ULSTER COUNTY SUPPORT COLLECTION UNIT, ON BEHALF OF Annamaria BEKE, Respondent,
v.
Imre Arpad BEKE Jr., Appellant.

525933

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 11, 2019
Decided and Entered: March 14, 2019

MEMORANDUM AND ORDER

Mulvey, J.

170 A.D.3d 1347

Respondent lives in Florida and has four children who live with their mother in Ulster County. In 2014, Family Court entered an order on consent requiring respondent to pay child support. Petitioner filed a violation petition alleging that respondent willfully failed to obey the 2014 order. Respondent appeared by telephone before the Support Magistrate for arraignment, an appearance and a hearing, following which the Support Magistrate concluded that respondent had willfully violated the support order and recommended that he be incarcerated. The matter was referred to Family Court for confirmation. Respondent requested permission to give electronic testimony. Family Court denied that application both in writing and orally and directed, on the record, that respondent must appear in person for the hearing. When respondent did not appear, the court conducted the hearing in his absence, found that he willfully violated the support order and committed him to jail for 180 days. Respondent appeals.

Family Court properly found respondent in default.¹ Although respondent's

96 N.Y.S.3d 378

counsel appeared and offered the explanation

170 A.D.3d 1348

that respondent could not afford to travel to New York, the court had already heard and rejected that excuse in connection with respondent's application to give electronic testimony and directed him to appear in person for the hearing. When respondent failed to do so, the court did not abuse its discretion by finding him in default (compare Matter of Linger v. Linger , 150 A.D.3d 1444, 1445, 55 N.Y.S.3d 760 [2017] ). "[T]he proper procedure would be for [respondent] to move to vacate the default and, if said motion is denied, take an appeal from that order" ( Matter of Jesse DD. v. Arianna EE. , 150 A.D.3d 1426, 1427, 54 N.Y.S.3d 733 [2017] ; accord Matter of Ruiz v. Gonzalez , 166 A.D.3d 1353, 1353, 88 N.Y.S.3d 618 [2018] ).² Because no appeal lies from an order entered on default, we must dismiss this appeal (see Matter of Ruiz v. Gonzalez , 166 A.D.3d at 1353, 88 N.Y.S.3d 618 ; Matter of Jesse DD. v. Arianna EE. , 150 A.D.3d at 1427, 54 N.Y.S.3d 733 ).

Clark, Devine and Aarons, JJ., concur.

Lynch, J.P. (dissenting).

I respectfully dissent. In my view, the appearance by respondent's counsel at the October 12, 2017 confirmation hearing and explanation for respondent's financial inability to attend, coupled with a request for an adjournment, does not constitute a default (see Matter of Linger v. Linger , 150 A.D.3d 1444, 1445, 55 N.Y.S.3d 760 [2017] ; compare Matter of Richardson v. Fitch–Richardson , 135 A.D.3d 1091, 1092, 22 N.Y.S.3d 917 [2016] [default where counsel unable to account for client's absence and made no request for adjournment];

170 A.D.3d 1349 ...