Will a family court dismiss a family offense petition when the petitioner does not appear for the hearing?

Ms. B.'s family offense petition is also dismissed for failure to prosecute. See N.Y. C.P.L.R. § 3216 (McKinney's 2017). Ms. B. was in court when the August 24, 2017 court date was chosen. Even though she was aware of the date, she did not come. Ms. B. did not seek an adjournment from the Court, or communicate in any way with the Court regarding her absence. Ms. E. told the Court that she knew that Ms. B. was not going to be present because the parties' mother had told her that her sister would not be there. Thus, the Court deems Ms. B.'s failure to appear to be her failure to prosecute. An order of protection in this case is neither necessary or appropriate, and all orders are hereby vacated.

Latonya P. and Jefferson W. have been litigating in Family Court since as early as 1994. At some point in the early 90s or late 80s, these individuals were involved in a romantic relationship that resulted in the birth of a child who was born in 1992. Over the course of the past three decades the parties have filed numerous petitions against one another in the Family Courts of New York.

Though their relationship has long since ended, the former couple continues to play out their frustrations and issues with one another using the Family Courts as their stage through the "child in common" aspect of New York Family Court Act Section 812. Family Court Act Section 812 specifies that individuals that may file for an order of protection in Family Court are 1) persons related by consanguity or affinity, 2) person legally married to one another, 3) persons formerly married to one another, regardless of whether they still reside in the same household, 4) persons who have a child in common regardless of whether such persons have been married or resided together at any time, or 5) person who have been or are in an "intimate relationship."

By virtue of their child and their now decades concluded relationship, the parties have made a career out of filing family offense petitions against one another and as of the time of this writing have participated in 19¹ family offense proceedings alone. Of note is that not a single

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petition filed moved beyond return of process because of the failure of the Petitioner, typically Latonya, to appear and were dismissed without prejudice. Generally, Latonya's allegations since 1994 have been the same: Jefferson has a gun and he threatened to kill her because she did not want to have another baby with him or be with him in general. Jefferson's petitions generally requested the court to intervene and stop Latonya from filing the numerous petitions that over the course of time have allegedly resulted in his arrest, loss of job and difficulty in finding employment. He attributes her excessive behavior to a mental health issues gone untreated.

[...]

The Family Courts of the State of New York and victims of domestic violence would benefit from the Legislature's revisiting the statute so that the true intent of the statute can take hold. In light of the foregoing, it is hereby

ORDERED that, the petition is dismissed for failure to prosecute; and it is further

ORDERED that, neither Latonya P. or Jefferson W. may file a Family Offense Petition without prior Judicial authorization.

[...]

Footnotes:

^1. O—94 (P. v. W., dismissed, 8/25/1994, failure to appear)

O—95 ( P. v. W., dismissed, 9/5/1995, failure to appear)

O—96 ( P. v. W., dismissed, 6/4/1996, failure to appear)

O—96 ( W. v. P., dismissed 6/27/1996, failure to appear)

O—04 (M v. P, dismissed, 4/7/2004, failure to appear. Nota Bene, M. is P's Mother and at one time the legal custodian of the parties' child)

O—04 ( A. v. P., dismissed 4/7/2004, failure to appear. Nota Bene, A. is the grandmother of P.)

O—11 ( P. v. W., dismissed, 5/10/2011, failure to appear. Nota Bene, W. in this petition is actually the child in common of Latonya and Jefferson)

O—14 ( P. v. W., dismissed, 9/15/14, failure to appear. Nota Bene, W. in this petition is actually the child in common of Latonya and Jefferson)

O—14 ( P. v. W., dismissed, 9/15/14, failure to appear)

O—14 ( W. v. P., dismissed, 9/15/14, failure to state a cause of action)

O—16 ( W. v. P., dismissed, 3/17/16)

O—16 ( P. v. W., dismissed 7/14/16, failure to appear)

O—17 ( P. v. M., dismissed, 11/24/17, failure to appear)

O—17 ( P. v. W., dismissed 11/24/17, failure to appear. Nota Bene, W in this petition is actually the child in common of Latonya and Jefferson)

O—17 ( P v. P, dismissed 11/24/17, failure to appear. Respondent P. is the Father of Petitioner Latonya Paul).

O—17 ( P. v. W., dismissed 5/31/17, failure to appear)

O—17 ( W. v. P., dismissed 10/23/17, failure to prosecute

O—18( P. v. W., dismissed 10/16/18, failure to appear)

O—18 ( P. v. W., dismissed 7/17/18, failure to appear. Respondent appeared with private counsel)

At the parties’ November 2018 court appearance, the mother failed to appear. Family Court scheduled the matter for a fact-finding hearing and specifically cautioned that, if either one of the parties failed to appear at the hearing, their petitions would be dismissed and the hearing would proceed in their absence. Although the mother appeared at a February 2019 court appearance, the fact-finding hearing originally scheduled for that date was adjourned until May 2019. At the May 2019 fact-finding hearing, the mother again failed to appear, and, over the objection of her counsel, Family Court dismissed the mother's custody petition, family offense petition and enforcement petition and proceeded with a fact-finding hearing solely on the father's custody modification petition. Following the hearing, Family Court granted the father's petition, awarded him sole legal and primary physical custody of the children and modified the mother's parenting time schedule, providing her with supervised parenting time to be "arranged as to time, place, circumstances and supervisor as determined by the [f]ather," and telephone and electronic contact with the children "as permitted by the [f]ather." The mother appeals.

The mother contends that Family Court abused its discretion when it declined to adjourn the fact-finding hearing and dismissed her petitions based upon

[151 N.Y.S.3d 453]

her failure to appear. We disagree. "Whether to grant or deny an adjournment rests within the trial court's sound discretion, and such requests should be granted only upon a showing of good cause" (Matter of Thompson v. Wood, 156 A.D.3d 1279 1282, 68 N.Y.S.3d 199 [2017]; see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006]). Here, the only excuse offered by the mother's counsel as to why the mother was unable to attend the hearing was that, following her release from jail in New York earlier the same week, she had returned to her residence in Virginia and that "an emergent situation" subsequently arose that prevented her from getting back to New York. However, given that Family Court previously notified the parties that any failure to appear at the fact-finding hearing would result in the dismissal of their petitions, the mother's history of failing to appear at scheduled court appearances, the lack of evidence detailing the nature of the emergency that prevented her from attending the hearing and the fact that her counsel actively and diligently participated in the hearing in the mother's absence, we find no abuse of discretion in Family Court's denial of the adjournment request of the mother's counsel (see Matter of Thompson v. Wood, 156 A.D.3d at 1282–1283, 68 N.Y.S.3d 199; Matter of Dench–Layton v. Dench–Layton, 151 A.D.3d 1199 1200, 56 N.Y.S.3d 598 [2017]).

By order dated December 14, 2004, the Support Magistrate, inter alia, dismissed the father's petition for downward modification of his child support obligation for failure to prosecute based on his failure to appear for the hearing on the petition, scheduled for that date. In an order dated January 5, 2005 the Support Magistrate denied the petitioner's motion, in effect, to vacate his default. By order dated March 29, 2005 the Family Court, inter alia, denied the petitioner's objection to the Support Magistrate's order. We reverse.

It is undisputed that the petitioner's attorney was led to believe that the matter would be adjourned when the Family Court dismissed the petition based on the petitioner's failure to appear on December 14, 2004. "A party seeking to vacate a default must establish a reasonable excuse for the default and a meritorious case" (Matter of Butterworth v Sperber, 6 AD3d 530 [2004]; see CPLR 5015 [a] [1]; Matter of Oliphant v Oliphant, 21 AD3d 376, 376 [2005]). The question of "whether to relieve a party of an order entered on default is a matter left to the sound discretion of the court" (Matter of Fierro v Fierro, 211 AD2d 676, 678 [1995]).

Under the circumstances presented, the petitioner established a reasonable excuse for his default based on his attorney's reasonable belief that the matter had been adjourned (see Matter of Cohen v Seletsky, 142 AD2d 111, 117 [1988]). He also established a meritorious claim as the factual allegations contained in the verified petition, that he had lost his employment, constituted a sufficient affidavit of merit (see Cohen v Seletsky, supra at 116-117; CPLR 105 [u]; Family Ct Act § 165). As this proceeding involves the issue of child support, the law favors its resolution on the merits (see Matter of Ecker v Ecker, 168 AD2d 618 [1990]).

In any event, even assuming that the circumstances established a genuine default, the Family Court improvidently exercised its discretion in denying the wife's motion to vacate the final order of protection entered upon her default. The wife moved to vacate the final order of protection on the same day it was issued, and her explanation that she and her attorney were in the process of filing family offense and custody petitions on her behalf when the matter was called was a reasonable excuse for her failure to appear (see Matter of Kindra B., 296 A.D.2d at 458, 745 N.Y.S.2d 74; Matter of Martin v. Martin, 239 A.D.2d 698, 699, 657 N.Y.S.2d 822). It is also clear that the wife's default was not wilful (see Ito v. Ito, 73 A.D.3d 983, 900 N.Y.S.2d 665; Matter of Santiago v. Santiago, 275 A.D.2d 429, 430, 712 N.Y.S.2d 629), and her affidavit in support of her motion to vacate was sufficient to demonstrate the existence of a potentially meritorious defense to the husband's petition, and to the issuance of a final order of protection effectively excluding her from the marital residence.