| Matter of Womack v Rosario |
| 2008 NY Slip Op 02929 [50 AD3d 1212] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of David James Womack, Appellant, v CynthiaRosario, Respondent. |
—[*1] Bruce Evans Knoll, Albany, for respondent. Bruce S. Trachtenberg, Law Guardian, Niskayuna.
Cardona, P.J. Appeal from an order of the Family Court of Schenectady County (Taub,J.H.O.), entered May 9, 2007, which dismissed petitioner's application, in a proceeding pursuantto Family Ct Act article 6, for modification of a prior custody order.
The parties herein are the unmarried parents of a daughter born in 2003. After respondentfiled, among other things, a custody petition, Family Court (Powers, J.) learned that petitionerwas in the Schenectady County Jail and it issued an "order to produce" so that petitioner couldattend proceedings scheduled for October 6, 2006. Thereafter, noting that petitioner "refused tobe brought over to the Court from the Schenectady County Jail," Family Court indicated that itwas "satisfied that [petitioner] knowingly refused to appear." Accordingly, in an October 20,2006 order, upon petitioner's default, the court granted, among other things, sole legal custody ofthe child to respondent. Subsequently, in February 2007, petitioner commenced this proceedingspecifically seeking modification of the existing custody order based on his claim that there wasnever "a court order to produce myself in Court [b]ack in [October 2006]." Family Court (Taub,J.H.O.) dismissed the petition because it failed "to state a change in circumstances," promptingthis appeal.[*2]
Petitioner's failure to "factually aver any change incircumstances [since the prior order] which would warrant modification" supports Family Court'ssummary dismissal of the petition without further proceedings (Matter of Deuel v Dalton, 33 AD3d1158, 1159 [2006]). Despite the clear wording in the petition to the effect that modificationof the existing order was being sought, petitioner nevertheless contends on appeal that the subjectpetition "could be legally construed" as a motion to reopen the prior default judgment, which wasdenied by Family Court, thus rendering the issue a proper one to be considered by this Court onappeal (cf. Matter of Thorsland vRay, 45 AD3d 1119 [2007]). However, even assuming arguendo that it would beappropriate for this Court to consider the subject appeal in that posture, we are unpersuaded bypetitioner's arguments.
To vacate a default judgment under CPLR 5015 (a), the movant "must demonstrate both areasonable excuse for the default and a meritorious defense" (Wade v Village of Whitehall, 46 AD3d 1302, 1303 [2007]; see Matter of Joseph N., 45 AD3d849, 849 [2007]; Matter of Joostenv Joosten, 32 AD3d 1030, 1031 [2006], lv dismissed 8 NY3d 834 [2007]). Here,petitioner has not demonstrated the required reasonable excuse for his failure to be present atFamily Court on October 6, 2006. His assertion that an order to produce was not issued is refutedby the documentary proof in this record. Petitioner presented no supporting evidence disputingFamily Court's finding that he refused to be transported from the jail to the courtroom. Therefore,even treating his petition before Family Court as a motion to open his default would not granthim relief.
Spain, Carpinello, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.