Opinion
1421 CAF 14-00811.
12-23-2015
In the Matter of Megan M. STRUMPF, Petitioner–Respondent, v. Steven A. AVERY, Jr., Respondent–Appellant.
Elizabeth Ciambrone, Buffalo, for Respondent–Appellant. Denis A. Kitchen, Jr., Williamsville, for Petitioner–Respondent. David H. Frech, Attorney for the Children, Buffalo.
Elizabeth Ciambrone, Buffalo, for Respondent–Appellant.
Denis A. Kitchen, Jr., Williamsville, for Petitioner–Respondent.
David H. Frech, Attorney for the Children, Buffalo.
Opinion
MEMORANDUM:
Respondent father appeals from an order denying his motion to vacate an order, entered upon his default, that awarded petitioner mother sole custody of the parties' children and limited the father's contact with the children to agency-supervised visitation. We conclude that Supreme Court properly denied the father's motion.
“Although default orders are disfavored in cases involving the custody or support of children, and thus the rules with respect to vacating default judgments are not to be applied as rigorously in those cases ..., that policy does not relieve the defaulting party of the burden of establishing a reasonable excuse for the default” or a meritorious defense (Matter of Roshia v. Thiel, 110 A.D.3d 1490, 1491, 972 N.Y.S.2d 804, lv. dismissed in part and denied in part 22 N.Y.3d 1037, 981 N.Y.S.2d 352, 4 N.E.3d 362 [internal quotation marks omitted]; see Matter of Cummings v. Rosoff, 101 A.D.3d 713, 714, 955 N.Y.S.2d 193). Here, the father established neither.
Although the father contended that he did not appear in court because he never received notice of the proceedings, text messages that he sent to the mother establish that his failure to appear in court “was willful and intentional” (Matter of Silverman v. Reid, 259 A.D.2d 550, 551, 684 N.Y.S.2d 904; see Matter of Burns v. Carriere–Knapp, 278 A.D.2d 542, 544, 717 N.Y.S.2d 398). Moreover, the father's claim that he never received notice of the court date is belied by his attorney's statements that he was “noticed” and the court's statement that the notice it mailed to the father was not returned (see Matter of Colin D. v. Latoya A., 132 A.D.3d 438, 438, 17 N.Y.S.3d 404). Even assuming, arguendo, that the father established a reasonable excuse for his default based on the fact that he had changed residences several times and thus may not have received notice (cf. Dudley v. Steese, 228 A.D.2d 931, 931–932, 644 N.Y.S.2d 824), we conclude that the father failed to establish a meritorious defense.
In order to support his claim of a meritorious defense, the father was “required ‘to set forth sufficient facts [or legal arguments] to demonstrate, on a prima facie basis, that a defense existed’ ” (Matter of Susan UU. v. Scott VV., 119 A.D.3d 1117, 1118, 990 N.Y.S.2d 655), but he failed to do so. His bare assertion that he had a meritorious defense without stating the facts or legal arguments to establish that defense is insufficient (see Matter of Atkin v. Atkin, 55 A.D.3d 905, 905, 865 N.Y.S.2d 577).
Finally, the father contends that he was denied due process by the withdrawal of his attorney without appropriate notice. That contention, which is raised for the first time on appeal, is not preserved for our review (see Matter of Rodney W. v. Josephine F., 126 A.D.3d 605, 606, 6 N.Y.S.3d 239, lv. dismissed 25 N.Y.3d 1187, 16 N.Y.S.3d 46, 37 N.E.3d 103; Matter of Kimberly Carolyn J., 37 A.D.3d 174, 175, 829 N.Y.S.2d 71, lv. dismissed 8 N.Y.3d 968, 836 N.Y.S.2d 540, 868 N.E.2d 222).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.