Q: Regarding Family Court in New York State (Westchester County). I recently missed a hearing on a support modification petition. The Order, issued by a Support Magistrate, states I did not show and that they “proceeded to a hearing”. Needless to say, I lost. I would like to file an objection. The Order came with a piece of paper explaining how to file an objection. However, I know that Orders entered on default can not be appealed and that an objection is not the way to go. My question is, is my order an order on default? The word default does not appear anywhere on it. Thank you.
A:Davidd’s Answer: This appears to be a default order, though I’d want to look at the order to render a definitive opinion. Your move in that instance would be to file a motion to vacate your default – not an Objection appeal. Schedule a consult with a Westchester Family Law attorney for a full assessment.
Q: There are 3 reasons I’m questioning if it is a default order. 1st, the language on the face of my order states “Specific written objections to this order may be filed with this court within 30 days of the date the order was received in court or by personal service or if the order was received by mail, within 35 days of the mailing of the order”. 2nd: No where does it say the word default. 3rd: I found this case law from an Appeal of Advic v Advic: “With respect to appeal No. 2, we reject the father’s contention that the order was entered on the mother’s default and is therefore not appealable. Although the mother did not appear at the hearing, the order does not recite that it was entered on default, no application was made for a default, and the mother’s attorney appeared at the hearing (cf. Matter of Bradley M.M. [Michael M.-Cindy M.], 98 AD3d 1257, 1257; see generally Matter of Rosecrans v Rosecrans, 292 AD2d 817, 817; Matter of Williams v Lewis, 269 AD2d 841, 841). We thus conclude that this appeal is properly before us”. Although I had no attorney, that doesn’t seem to be a requirement? Thank you.
A:David’s Answer: Although I’d prefer to see the actual order/decision to render a definitive opinion, if neither you nor your representative appeared at the hearing, then most likely it will be considered a default. That said, you could always file BOTH a motion to vacate AND an Objection appeal.