Weintrob v. Weintrob

Aug 30, 2011
Versions:87 A.D.3d 749
929 N.Y.S.2d 865
929 N.Y.2d 865

That branch of the father’s motion which was to vacate a child support order dated August 14, 2006, on the basis of excusable default should have been made within one year of service upon him of a copy of the order, with notice of its entry (see CPLR 5015 [a]; Matter of Wrighton v Wrighton, 23 AD3d 669 [2005]; Matter of Bykya Minnie E., 212 AD2d 365, 366 [1995]). A party to a Family Court proceeding seeking to vacate an order entered upon default must establish that there was a reasonable excuse for the default and a potentially meritorious defense (see Matter of Proctor-Shields v Shields, 74 AD3d 1347, 1348 [2010]; Ito v Ito, 73 AD3d 983 [2010]; Diaz v Diaz, 71 AD3d 947 [2010]).

Since the father made his motion to vacate the order dated August 14, 2006, more than one year after the service upon him of a copy of that order, with notice of its entry, that branch of his motion which was to vacate that order on the basis of excusable default was properly denied as untimely. Moreover, although the Supreme Court has the inherent authority to vacate an order in the interest of justice even where the statutory one-year period under CPLR 5015 (a) (1) has expired, here, the father failed to demonstrate a reasonable excuse for his delay in moving to vacate the order, and failed to demonstrate a reasonable excuse for his failure to appear in court on August 14, 2006, to defend against the mother’s petition for an award of child support (see Santiago v Honcrat, 79 AD3d 847, 848 [2010]; Valentin v City of New York, 73 AD3d 755, 756 [2010]). Accordingly, the Family Court providently exercised its discretion in denying the father’s objection to an order of a Support Magistrate dated June 8, 2009, denying that branch of his motion which was to vacate the child support order dated August 14, 2006, entered upon his default (see Matter of Proctor-Shields v Shields, 74 AD3d at 1348; Diaz v Diaz, 71 AD3d 947 [2010]; Matter of Armstrong v Doby, 69 AD3d 933, 934 [2010]; Matter of Conwell v Booth, 66 AD3d 773 [2009]; Matter of Heinz v Faljean, 57 AD3d 665, 666 [2008]).

In addition, and contrary to the father’s contention, the Family Court had no authority to reduce or annul child support arrears accrued prior to his submission of an application to modify the order of child support, regardless of whether the father had good cause for having failed to seek modification of his child support obligation prior to the accumulation of those arrears (see Family Ct Act § 451; Matter of Dox v Tynon, 90 NY2d 166, 173-174 [1997]; Matter of Moore v Abban, 72 AD3d 970, 972-973 [2010]; Matter of Mandelowitz v Bodden, 68 AD3d 871, 875 [2009]; Matter of Wrighton v Wrighton, 23 AD3d at 670). Skelos, J.P., Eng, Hall and Lott, JJ., concur.