Family Court, Kings County, November 2, 2018

J.S., respondent pro se.

I.F., petitioner pro se.

Petitioner mother filed an objection to an order entered by a Kings County Support Magistrate on August 30, 2018, which vacated an order modifying an order of support by default issued in Kings County under docket No. F-XXXXX-12/14C. The Support Magistrate vacated the modification order ab initio after determining that there had been no underlying order of support. Pursuant to article 4 of the Family Court Act, petitioner filed an objection on September 6, 2018, stating, "It was a clerical error. Case was supposed to filed [sic] as new case & not a modification. You cannot modify something that never existed." The respondent father did not file a response to the objection. After review of the objection filed by the petitioner, this court grants the objection and reinstates the prior order of support.

Background

On or about October 27, 2010, respondent father filed a paternity petition in Kings County Family Court alleging that he was the father of M.J.F. under docket No. P-XXX73-10. Support Magistrate Jennifer Castaldi issued an order of filiation on February 28, 2011, under docket No. P-XXX73-10 and a temporary order of support for $25 monthly effective March 11, 2011, under docket No. F-XXX73-10. As described below, the subsequent proceedings were complicated and confusing; however, it is important to note that the temporary support order which was issued on this date continued without a break until it was modified in 2015.

In addition to issuing the temporary order of support in February 2011, Magistrate Castaldi ordered the proceedings transferred to New York County for further proceedings as the subject child was receiving public assistance. Notice to appear in New York County Family Court on May 24, 2011, under{**62 Misc 3d at 745} docket No. F-XXX10-11 was mailed on April 11, 2011, to both parties. It is unclear from the record, who, if anyone, appeared in court on that date. A new summons was mailed to respondent father on May 24, 2011, informing him to appear on July 15, 2011, for return of process under docket No. F-XXX10-11. In addition, on May 24, 2011, the City of New York Human Resources Administration Office of Child Support Enforcement sent an assignor notice to petitioner mother informing her that a petition had been filed on behalf of her and her child and that the Family Court required she be present at the hearing on July 15, 2011. On July 15, 2011, petitioner mother did not appear, and Magistrate Vanessa Evans issued an order under docket No. F-XXX10-11 dismissing the petition without prejudice for failure to prosecute.

On or about March 19, 2012, petitioner mother filed a petition for modification of an order of support under docket No. F-XXX06-12/12A,^[FN*] referencing the temporary order of support which was issued on February 28, 2011, under the paternity docket No. F-XXX73-10. On or about September 4, 2012, the proceeding under docket No. F-XXX06-12/12A was dismissed for failure of the petitioner to appear. The temporary order of support, however, was continued as the dismissal of the modification petition stated that "the order of support continues."

On October 17, 2014, petitioner mother filed a petition for modification of an order of support under docket No. F-XXX06-12/14C alleging that her expenses had gone up and requesting that the order of support be increased. Petitioner mother also filed a petition for violation of a support order under docket No. F-XXX06-12/14B, alleging that the respondent father owed her back support of $500 and was not paying the child support on time. A summons for both dockets noticing the respondent father to appear on December 8, 2014, before Magistrate Israella Mayeri, was mailed on October 17, 2014. When respondent father did not appear on December 8, 2014, another notice was mailed, informing him that the fact-finding/disposition would be on April 13, 2015, again in front of Magistrate Mayeri.

Respondent father did not appear on April 13, 2015, and on default, a money judgment in the amount of $782.46 was{**62 Misc 3d at 746} entered against him under docket No. F-XXX06-12/14B. With respect to the mother's modification petition, docket No. F-XXX06-12/14C, Magistrate Mayeri issued findings of fact which referenced the order dated September 4, 2012 (the order stating that the[*2]"order of support continues"), and determined retroactive support and the child's current expenses. Magistrate Mayeri therefore issued an order modifying an order of support by default in which the retroactive support was set at $6,629.37 and the support order modified to $1,151.50 monthly.

On July 27, 2018, respondent father filed a motion under docket No. F-XXX06-12/14C seeking to vacate the default modification of the order of support. His motion requested vacatur for the reason that no final order of support had been issued prior to the modification. He filed an additional motion under his original paternity proceeding, docket No. F-XXX73-10 in which he requested that a final order of support be issued.

In her findings of fact, dated August 30, 2018, in response to both of the respondent father's motions, the Support Magistrate held that a "search of UCMS shows that no Final Order of Support has been issued in New York State for the support of this subject child." She determined that the court erred in issuing an order modifying an order of support on default in April 2015. She granted the respondent father's motions and vacated the order of support by default issued on April 13, 2015, ab initio on the ground that there had been no underlying order of support, and the modification order had therefore been granted in error.

Analysis

The respondent father had two motions pending before the court. Under docket No. F-XXX06-12/14C, the father moved to dismiss the modification order, arguing that there had been no final support order upon which to base the modification. Under docket No. F-XXX73-10, the father requested that a final order of support be issued. The Support Magistrate, finding that the petitioner mother's support petition under docket No. F-XXX10-11 had been dismissed, and agreeing with the respondent father that the modification order in docket No. F-XXX06-12/14C had been granted in error, vacated all orders of support and arrears.

The dismissal of the support orders was not warranted. An order of support had, in fact, been issued under docket No. F-XXX06-12/14C. (See CPLR 5241 [a] [1] [order of support means "any temporary or final order, . . . judgment or decree {**62 Misc 3d at 747}in a matrimonial action or family court proceeding . . . which directs the payment of . . . child support"].) This order was issued pursuant to the mother's petition for modification and, on the default of the respondent father, the Support Magistrate in 2015 issued a final order modifying the support payments. In granting the father's motions in 2018, the Support Magistrate appeared to believe that the order of April 2015 was not valid because docket No. F-XXX10-11 was dismissed in July 2011. However, despite the dismissal of that docket, a temporary order of support was continued under the original paternity docket (No. F-XXX73-10). Therefore, the order of 2015, which modified that temporary order, was indeed valid as it modified an order, albeit a temporary one, that was in effect. (See CPLR 5241 [a] [1].)

An order of a support magistrate is final and binding on the parties but may be appealed by submitting written objections to the Family Court "within thirty days after" entry of the order of support. (Family Ct Act § 439 [e].) The party against whom a judgment is entered on default must first move to vacate his default before appealing the judgment. (CPLR 5015 [a]; 5511; Settembrini v Settembrini, 270 AD2d 408 [2d Dept 2000].) As the order under docket No. F-XXX06-12/14C was made on default, it was the burden of the respondent father to follow appropriate remedies under CPLR 5015. The respondent father's motion to vacate the default judgment modifying the support order was filed more than three years after the modification order was issued. Moving to vacate the 2015 order on the ground of excusable [*3]default more than three years later is not permitted under the CPLR. (CPLR 5015 [a] [1]; Matter of Wrighton v Wrighton, 23 AD3d 669, 669 [2d Dept 2005] [affirming denial of motion to vacate as untimely where it was made more than a year after the date of the order].) Moreover, the respondent father does not cite to any of the other stated grounds for vacatur under CPLR 5015. (See CPLR 5015 [a] [2]-[5].)

Even if the respondent father's motion were timely under CPLR 5015 (a) (1), in order to prevail, the father would have had to demonstrate a reasonable excuse for his default in opposing the application for modification of the support order and to demonstrate the existence of a potentially meritorious defense to that application. (Matter of Proctor-Shields v Shields, 74 AD3d 1347, 1348 [2d Dept 2010].) The respondent father has failed to make this showing.{**62 Misc 3d at 748}

An additional consideration is that the petitioner mother has been relying on the existence of an order of support from the Family Court since at least 2011. She had no reason not to believe she had an order of support. When she filed her petition to modify the order in 2014, she served the respondent father at the same address at which he had been living for the duration of the proceedings. The father then defaulted, and the mother received a final order under her modification petition. The granting of the mother's modification petition correctly modified the existing temporary order of support and that final order has been in place since April 2015.

It would therefore be severely prejudicial to vacate all prior support orders and the mother's petitions. This would leave the mother with no mechanism to recoup child support to which the child is entitled. Public policy of the state favors "obligating individuals . . . to provide support for their children." (Matter of H.M. v E.T., 14 NY3d 521, 527 [2010].) Support of one's children is so important that there is a strong public policy even against restitution or recoupment of the overpayment of child support. (Matter of Taddonio v Wasserman-Taddonio, 51 AD3d 935, 936 [2d Dept 2008].) Vacating seven years of child support would clearly be contrary to those policy considerations and would not be in the best interest of the child.

The Support Magistrate therefore erred in determining that no final order of support had been issued for the subject child and granting the respondent father's motion. The Magistrate's vacatur of all prior support orders was improper, as the temporary order of support, first issued in 2011 and continued until 2015, was modified by the order issued on default on April 13, 2015. There was thus no basis to grant the respondent father's motions and, in any event, they should have been dismissed as untimely.

Therefore, the petitioner mother's objection is granted. The order of support and retroactive support dated April 13, 2015, is reinstated, and the respondent father's motions are dismissed.