In the Matter of CLINT L. LINGER, Respondent,
KIRSTEN R. LINGER, Appellant.
Calendar Date: March 27, 2017
Michelle I. Rosien, Philmont, for appellant.
G. Cushman, Norwich, for respondent.
Charles E. Lupia, Syracuse, attorney for the child.
Before: McCarthy, J.P., Garry, Egan Jr., Rose and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Chenango County (Revoir
Jr., J.), entered May 3, 2016, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act
article 6, to modify a prior order of custody and visitation.
(hereinafter the father) and respondent (hereinafter the
mother) are the parents of one child (born in 2005). In
January 2016, the parties consented to an order by which they
shared joint legal custody and the mother had primary
physical custody. In February 2016, with the father's
consent, the mother relocated with the child to South
Carolina. In April 2016, the father moved by order to show
cause for an order granting him temporary physical custody of
the child, on the ground that the mother had relocated again
to Florida and had left the child in South Carolina in the
care of her paramour, who had then sent the child to New York
to live with the father. Family Court signed an amended order
to show cause that awarded temporary physical custody to the
father pending resolution of the matter, and scheduled a
return date for an appearance. Upon that date, the mother did
not appear, but counsel appeared on her behalf. Family Court
declared the mother in default and issued a final order of
custody that awarded primary physical placement of the child
to the father and provided parenting time to the mother as
agreed upon between the parties. The mother appeals.
circumstances presented, the mother was not required to seek
to vacate the default judgment before taking this appeal. A
party may not appeal from an order entered on default
(see CPLR 5511), but a party's absence does not
necessarily constitute a default, "particularly where
counsel appears upon the absent party's behalf and offers
an explanation for his or her failure to attend"
(Matter of Derek P. v Doris Q., 92 A.D.3d 1103, 1105
, lv dismissed and denied 19 N.Y.3d 831');">19 N.Y.3d 831
; see Matter of Freedman v Horike, 107 A.D.3d
1332, 1333 ; Matter of Scott v Jenkins, 62
A.D.3d 1053, 1054 , lv denied 13 N.Y.3d 705');">13 N.Y.3d 705
). Here, the mother's counsel appeared and advised
Family Court that he had communicated with the mother several
times by phone and email, that she was then at a considerable
distance in either Florida or South Carolina, and that she
had a limited income. The mother's counsel further
advised the court relative to the mother's position in
the matter and participated in the proceedings by consenting
to the requested relief, that is, to permit the child to
remain temporarily with the father. Counsel also
unsuccessfully requested a continuance, and ultimately
advised that he did not have authority to consent to a final
order of permanent physical placement to the father. In light
of these circumstances, we find that the mother was not in
default and that the order is appealable (see Matter of
Harris-Wilks v Harris, 56 A.D.3d 1063, 1063-1064 ;
Matter of D'Entremont v D'Entremont, 254
A.D.2d 576, 576 ; compare Matter of Adele T.
[Kassandra T.], 143 A.D.3d 1202, 1203-1204 ;
Matter of Deshane v Deshane, 123 A.D.3d 1243,
1243-1244 , lv denied 25 N.Y.3d 901');">25 N.Y.3d 901 ).
critically, the father's order to show cause requested
only limited relief: temporary physical placement, permission
to enroll the child in school in New York, and a prohibition
against removal from this state, with any other issues to be
scheduled for further proceedings. It does not appear from
the record that any petition for modification of the prior
order had been filed prior to the appearance. The issue of
permanent physical placement was not properly before Family
Court, and the mother had no notice that this issue might be
decided. Thus, the manner in which the proceedings were
conducted deprived the mother of due process; she must be
allowed a full and fair opportunity to be heard, at a hearing
upon a request for permanent physical placement (see
Matter of Schroll v Wright, 135 A.D.3d 1028, 1029
; Matter of Richardson v Massey, 127 A.D.3d
1277, 1278 ; Matter of Jeffrey JJ. v Stephanie
KK., 88 A.D.3d 1083, 1084 ). Accordingly, the
award of permanent physical placement to the father must be
reversed, and the matter remitted for further proceedings.
Pending the parties' further appearance in Family Court,
physical placement shall remain temporarily with the father,
and the other terms of the May 3, 2016 order shall remain in
McCarthy, J.P., Egan Jr., Rose and Mulvey, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as awarded permanent physical
custody of the child to petitioner; matter remitted to the
Family Court of Chenango County for further proceedings not
inconsistent with this Court's decision and, pending said