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In the Matter of Chautauqua County Department of Social Services, On Behalf of Colleen A.Y., Petitioner-Respondent v. Rita M.S.

April 27, 2012

IN THE MATTER OF CHAUTAUQUA COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF COLLEEN A.Y., PETITIONER-RESPONDENT,
v.
RITA M.S., RESPONDENT-APPELLANT. (PROCEEDING NO. 1.)
IN THE MATTER OF CHAUTAUQUA COUNTY DEPARTMENT OF SOCIAL SERVICES, ON BEHALF OF COLLEEN A.Y., PETITIONER-RESPONDENT,
v.
KENNETH M.Y., RESPONDENT-APPELLANT. (PROCEEDING NO. 2.)



Appeals from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), entered February 4, 2011 in proceedings pursuant to Family Court Act article 4.

Matter of Matter of Chautauqua County Dept. of Social Servs. v Rita M.S.

Decided on April 27, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.

The order dismissed the objections of respondents and affirmed the orders of the Support Magistrate.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner, Chautauqua County Department of Social Services, commenced these proceedings pursuant to Family Court Act article 4 seeking an order directing Rita M.S., the respondent in proceeding No. 1 (hereafter, stepmother), and Kenneth M.Y., the respondent in proceeding No. 2 (hereafter, father), both of whom are nonresidents of New York, to furnish support for the four children who are the subjects of these proceedings (collectively, children). Petitioner sought child support retroactive to the time that the children entered the foster care system in New York. Upon respondents' default, the Support Magistrate, inter alia, directed the father to pay child support in the amount of $775 per week effective the date on which the children were placed in foster care and directed the stepmother to notify the Support Collection Unit of any change in employment status and health insurance benefits. The support orders are dated July 6, 2010 (hereafter, July orders). Respondents did not file objections to the July orders.

In October 2010, respondents moved to vacate the support orders and to dismiss the support proceedings pursuant to CPLR 5015 (a) (4) based upon Family Court's alleged lack of personal jurisdiction. By orders dated November 9, 2010 (hereafter, November orders), the Support Magistrate "denied and dismissed" respondents' motions to vacate the support orders, determining that the court had jurisdiction over respondents pursuant to Family Court Act § 580-201 (5). Respondents filed objections to the November orders, and Family Courtdismissed those objections and affirmed the November orders of the Support Magistrate.

On appeal, respondents contend that the court erred in failing to review their challenges to the July orders in the context of their objections to the November orders. We reject that contention. Although respondents are correct that the proper procedure to challenge an order entered upon a default is by way of a motion to vacate the default pursuant to CPLR 5015 (a) rather than by way of the filing of objections pursuant to Family Court Act § 439 (e) (see Matter of Garland v Garland, 28 AD3d 481, 481; Matter of Wideman v Murley, 155 AD2d 841, 842), here respondents moved to vacate the July orders and to dismiss the proceedings solely on the basis of alleged lack of personal jurisdiction pursuant to CPLR 5015 (a) (4), not on the basis of excusable default pursuant to CPLR 5015 (a) (1). Thus, respondents' motions brought up for review only the issue of jurisdiction, not the underlying merits of the July orders (see generally Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5015:9, at 220; cf. Labozzetta v Fabbro, 22 AD3d 644, 645-646; Pilawa v Dalbey, 275 AD2d 1035, 1036; Pallette Stone Corp. v Ebert, 210 AD2d 807, 808).

Respondents further contend that the court's jurisdictional determination must be vacated because it was not based upon competent evidence. We reject that contention. Contrary to respondents' contention, the Support Magistrate was not required to hold a hearing on the issue of personal jurisdiction before issuing the July orders. The support petitions alleged that New York had long-arm jurisdiction over respondents pursuant to Family Court Act § 580-201 (5), and respondents failed to answer the petitions, failed to move to dismiss the petitions for lack of personal jurisdiction (see CPLR 3211 [a] [8]), and failed to appear in court in opposition to the petitions. We thus conclude that the Support Magistrate properly determined based upon the documentation provided by petitioner that it had long-arm jurisdiction over respondents. When respondents moved to vacate the July orders on the ground that the court lacked personal jurisdiction, the Support Magistrate was faced with conflicting submissions on that issue from respondents and petitioner. Assuming, arguendo, that respondents' submissions disputed the underlying jurisdictional facts and not simply the legal conclusions to be drawn therefrom, respondents would have been entitled to a hearing on the issue of personal jurisdiction (see generally Saxon Mtge. Servs., Inc. v Bell, 63 AD3d 1029; Penachio v Penachio, 27 AD3d 540, 541; Cliffstar Corp. v California Foods Corp., 254 AD2d 760, 760-761). Respondents, however, waived any right to a hearing on jurisdiction by submitting their motion on papers only (see generally Matter of Pascarella v Pascarella, 66 AD3d 909, 910). We further conclude that respondents failed to preserve for our review their contention that the Support Magistrate's jurisdictional findings were not based upon competent evidence inasmuch as they did not challenge the competence of the evidence submitted by petitioner in their motions to vacate the July orders (see generally Mariano v New York City Tr. Auth., 38 AD3d 236, 236; Matter of Schulman, 161 AD2d 874, 875). Although respondents contended in their objections to the November orders denying their motions to vacate the July orders that those orders were not based upon competent proof, Family Court properly determined that such contention was unpreserved inasmuch as it was not raised before the Support Magistrate in the motions to vacate (see generally Lopez v 724 Mgt., LLC, 72 AD3d 453, 453; Matter of Redmond v Easy, 18 AD3d 283, 283-284).

Contrary to respondents' further contention, we conclude that the court properly determined that it had personal jurisdiction over them. Family Court Act § 580-201 provides that, "[i]n a proceeding to establish . . . a support order . . ., the tribunal of this state may exercise personal jurisdiction over a nonresident individual . . . if[, inter alia,] the child[ren] reside[] in this state as a result of the acts or directives of the individual" (§ 580-201 [5]). Here, the children clearly resided in New York as a result of respondents' acts and directives. After respondents were arrested and each charged with felony child abuse against the children, the Magistrate Court for Dona Ana County, Las Cruces, New Mexico ordered respondents to avoid all contact with the children. In light of the no-contact order, respondents requested that the children be placed in the care of the children's aunt in New York. In an August 2008 letter to the New Mexico Children, Youth and Families Department (CYFD), the father stated that "[t]he relative who will be available to take custody of any or all of the girls on our behalf is their aunt who would take them back to her dairy farm. We request they be released to her Monday 8/11/08 . . . [I]t is beyond all doubt in their best interest to be in such household rather than in foster care. She will be here as early tomorrow as you say they might be released." To that end, respondents executed a limited power of attorney authorizing the aunt to withdraw one of the children from school, and executed durable powers of attorney for health care designating the aunt as the children's agent for health care decisions. On August 11, 2008, CYFD and the aunt entered into a "safety contract" pursuant to which the aunt agreed to provide for the children's basic needs. In addition, the safety contract stated that the aunt understood that respondents "have voluntarily placed the children in [her] care for an undetermined length of time," and that she was "to contact [respondents] if [she were] in need of any financial assistance for the [children], as the[ respondents] are still legally responsible for the[ children's] well-being." Thereafter, the aunt transported the children to her home in New York. Under those circumstances, we conclude that the children began residing in New York "as a result of the acts or directives" of respondents within the meaning of Family Court Act § 580-201 (5), and thus that the court properly exercised personal jurisdiction over respondents (see generally Matter of Daknis v Burns, 278 AD2d 641, 641-643).

Respondents further contend, however, that the assertion of jurisdiction in this case violates due process. We reject that contention. "As a general rule, in order for the courts of one State to exercise jurisdiction over an individual who is domiciled in another State, due process requires that there be sufficient minimum contacts between that individual and the forum State such that the forum State's assertion of jurisdiction will not offend "traditional notions of fair play and substantial justice" ' " (Matter of Shirley D. v Carl D., 224 AD2d 60, 63, quoting International Shoe Co. v Washington, 326 US 310, 316). In particular, the subject individual's "conduct and ...


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