| Matter of Scott KK. v Patricia LL. |
| 2013 NY Slip Op 06898 [110 AD3d 1260] |
| October 24, 2013 |
| Appellate Division, Third Department |
| In the Matter of Scott KK., Appellant, v PatriciaLL., Respondent. (And Three Other Related Proceedings.) |
—[*1] Albert F. Lawrence, Greenfield Center, for respondent. Rose T. Place, Glens Falls, attorney for the child.
Lahtinen, J.P. Appeals (1) from an order of the Family Court of Warren County(Pritzker, J.), entered January 11, 2012, which granted respondent's application, inproceeding No. 3 pursuant to Family Ct Act article 8, for an order of protection, (2) froman order of said court, entered January 11, 2012, which dismissed petitioner'sapplications, in proceeding Nos. 1 and 2 pursuant to Family Ct Act article 6, to, amongother things, modify a prior order of custody, and (3) from an order of said court, enteredJune 28, 2012, which dismissed petitioner's application, in proceeding No. 4 pursuant toFamily Ct Act article 8, to modify an order of protection.
The parties, unmarried parents of a child (Febe, born in 2003), had multipleproceedings pending before Family Court. Petitioner (hereinafter the father), who wasserving a prison term for a felony conviction, informed Family Court directly andthrough his attorney that he would not appear in court except for a trial. Based upon hisrefusal to be transported for a duly scheduled appearance in court regarding the pendingpetitions, Family Court dismissed the father's petitions. The court further granted thepending application of respondent (hereinafter the mother), which alleged a familyoffense by the father, and, after the mother's testimony as to repeated violations by thefather of temporary orders of protection, Family Court issued a five-year order ofprotection for the mother and her child from another relationship as well as a two-[*2]year order of protection for Febe. As to Febe, Family Courtindicated that it was amenable to attempting to establish visitation for the father in theevent that he petitioned for modification and acknowledged a willingness to adhere tocourt orders. Instead, the father appealed.
We are unpersuaded by the father's contention that Family Court erred in finding himin default. While "[a] party who fails to appear generally will not be considered in defaultwhen the party's attorney is able to offer an explanation for the absence" (Matter of Scott v Jenkins, 62AD3d 1053, 1054 [2009], lv denied 13 NY3d 705 [2009]; see Matter of Freedman vHorike, 107 AD3d 1332, 1333 [2013]; Matter of Hill v Hillenbrand, 12 AD3d 980, 981 [2004],lv denied 4 NY3d 705 [2005]), the only explanation offered by the father'sattorney, who did appear, was to report the father's refusal to appear at any proceedingbefore Family Court other than a trial on his petitions. The record reflects that the fatherattempted to dictate to Family Court how the proceedings should progress and when hewould attend. Family Court's finding of default and dismissal was proper in light of thefather's willful refusal to appear and the absence of a reasonable excuse for hisnonappearance (see generallyMatter of Ariane I. v David I., 82 AD3d 1547, 1548 [2011], lv denied17 NY3d 703 [2011]; compare Matter of Freedman v Horike, supra). "It is wellsettled that a party cannot appeal from an order entered upon default, the properprocedure being to move to vacate the default and, if necessary, appeal from the denial ofthat motion" (Matter of Shabazz v Blackmon, 274 AD2d 770, 771 [2000], lvdismissed 95 NY2d 945 [2000] [internal quotation marks and citation omitted]; see Matter of Derek P. v DorisQ., 92 AD3d 1103, 1105 [2012], lv dismissed and denied 19 NY3d 831[2012]; Matter of Scott v Jenkins, 62 AD3d at 1054).[FN*] Accordingly, the merits of the father's appeals are not properly before us.
We briefly address the father's assertion that Family Court lacked subject matterjurisdiction to consider the mother's family offense petition, since an issue regardingsubject matter jurisdiction can be raised at any time (see Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21NY3d 200, 203 [2013]; Matter of Anstey v Palmatier, 23 AD3d 780, 780 [2005]).Although Family Court's jurisdiction regarding family offenses has been expanded by theLegislature in recent years (see e.g. L 2008, ch 326, § 7; Matter of Jessica D. v JeremyH., 77 AD3d 87, 90-91 [2010]; Merril Sobie, Practice Commentaries,McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 812 at 227-228), forthat court to have jurisdiction, the listed acts must nonetheless occur "between spouses orformer spouses, or between parent and child or between members of the same family orhousehold" (Family Ct Act § 812 [1]; see Matter of Janet GG. v Robert GG., 88 AD3d 1204,1205 [2011], lv denied 18 NY3d 803 [2012]). Here, the bulk of the allegationsconcerned the father's acts with the mother's child from a different relationship and therewere no allegations indicating that such child and the father were "members of the samefamily or household" as that phrase is statutorily defined (see Family Ct Act§ 812 [1] [a]-[e]). However, the petition also included the additional—albeitsomewhat conclusory—contention that the father had "threatened other peoplewith a gun in front of [the [*3]mother's] children"(emphasis added), which would necessarily include Febe. While further development ofthe record may have clarified and perhaps even eroded this contention, it nonethelessprovided Family Court a sufficient basis to exercise its jurisdiction to issue a temporaryprotective order, and the father's willful failure to appear in court has left the contentionunchallenged.
Stein, Spain and Egan Jr., JJ., concur. Ordered that the appeals are dismissed,without costs.
Footnote *: We note that one of thefather's petitions involved allegations of inadequate visitation during a previousincarceration and another sought custody during a time when he was out of prison. Sincehe has subsequently returned to prison, these petitions have become largely academic.Petitioner would be well-advised to follow Family Court's suggestion of filing a newpetition given his current circumstances.