| Matter of Freedman v Horike |
| 2013 NY Slip Op 04858 [107 AD3d 1332] |
| June 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of Mark Freedman, Appellant, v ReganHorike, Respondent. (And Another Related Proceeding.) |
—[*1] Regan Horike, East Chatham, respondent pro se. Ira Halfond, Craryville, Attorney for the Children.
Peters, P.J. Appeals (1) from an order of the Family Court of Columbia County(Nichols, J.), entered June 18, 2012, which dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to hold respondent in violation of a priorvisitation order, and (2) from an order of said court, entered June 18, 2012, whichdismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, tomodify a prior order of custody and visitation.
The parties are the divorced parents of a son and a daughter (born in 1990 and 1998,respectively), and have been engaged in a protracted battle over issues of custody andchild support (see e.g. Matter ofHorike v Freedman, 81 AD3d 1091 [2011], lv dismissed and denied 16NY3d 889 [2011]). Pursuant to a 2008 consent order, the daughter resides withrespondent (hereinafter the mother) in Columbia County, while petitioner (hereinafter thefather) is entitled to specified visitation with her in New York City.
The father filed petitions alleging that the mother had violated the 2008 order byinterfering with visitation, and sought to modify the terms of that visitation. Family Courtdismissed, without prejudice, the violation petition as procedurally defective. Inasmuchas the [*2]father advances no arguments with regard tothat dismissal, his appeal therefrom is deemed to be abandoned (see Matter ofRebecca O. v Todd P., 309 AD2d 982, 983 [2003]).
With regard to the amended petition seeking modification, the father sought a changein the mode of transportation used for the daughter's visitation. The father failed tophysically appear at the initial court date, and Family Court advised his attorney that hispersonal appearance would be required at an upcoming conference. Counsel for thefather did not dispute those terms and, indeed, agreed to notify opposing counsel if thefather was not going to appear at the conference so that the proceeding could bedismissed beforehand. The father did not appear at the conference, ostensibly becausecounsel did not realize that the father's attendance was required at the conference andfailed to explicitly direct him to appear at it. Family Court dismissed the proceedingwithout prejudice to renewal, holding both that the father's failure to appear constituted adefault and that the amended petition failed to state a claim. The father also appeals fromthat order, and we reverse.
The nonappearance of a party does not necessarily result in a default, "particularlywhere counsel appears upon the absent party's behalf and offers an explanation for his orher failure to attend" (Matter ofDerek P. v Doris Q., 92 AD3d 1103, 1105 [2012], lv dismissed anddenied 19 NY3d 831 [2012]; see Matter of Scott v Jenkins, 62 AD3d 1053, 1054 [2009],lv denied 13 NY3d 705 [2009]). The father's counsel stated that, while the fatherhad elected not to appear, counsel had not informed him that his appearance wasnecessary. Family Court did not challenge the accuracy of that representation and,moreover, made no effort to reach the father telephonically or by other means. Underthese circumstances, Family Court erred in holding that the father's nonappearanceconstituted a default (see Matterof Olivia C. [Scott E.], 97 AD3d 910, 911 [2012], lv denied 19 NY3d814 [2012]; Matter of Burns v Carriere-Knapp, 278 AD2d 542, 543-544 [2000]).
While Family Court further determined that the amended petition should bedismissed because "no basis . . . whatsoever" existed to support it, amodification petition that "allege[s] facts which, if established, would afford a basis forrelief" is facially sufficient (Matter of Bryant-Bosshold v Bosshold, 273 AD2d717, 718 [2000]; see Matter ofChristopher B. v Patricia B., 75 AD3d 871, 872 [2010]). An evidentiary hearingis thus necessary "unless the party seeking the modification fails to make a sufficientevidentiary showing to warrant a hearing or no hearing is requested and the court hassufficient information to undertake a comprehensive independent review of the [child's]best interests" (Matter of Twissv Brennan, 82 AD3d 1533, 1534 [2011] [internal quotation marks and citationsomitted]; see Matter of Schnockv Sexton, 101 AD3d 1437, 1437 [2012]). The father here alleged that he hadbecome disabled since the issuance of the custody order and that the resulting restrictionson his ability to travel and drop in income rendered the daughter's specifiedtransportation to and from visitation unworkable. In support of the amended petition, thefather also provided proof that he had difficulty sitting for long periods and beganreceiving benefits from the supplemental security income program after the custody orderwas issued. As Family Court aptly noted, serious questions exist as to whether the fatherwas aware of his purported disability at the time the prior order was issued. We areconstrained to liberally construe the allegations in the amended petition, however, andthus agree with the father that he "set forth sufficient facts which, if established at anevidentiary hearing, could afford a basis for granting the relief sought" (Matter ofSchnock v Sexton, 101 AD3d at 1438; see Matter of Twiss v Brennan, 82AD3d at 1535).
Rose, Stein and Garry, JJ., concur. Ordered that the order dismissing petitioner'sviolation petition is affirmed, without costs. Ordered that the order dismissing petitioner'samended petition seeking modification of a prior order of custody and visitation isreversed, on the law, without costs, and matter remitted to the Family Court of ColumbiaCounty for further proceedings not inconsistent with this Court's decision.