Matter of L. Rodriguez v. A. Gardinet

FINDINGS OF FACT The law requires parents to tell the Support Collection Unit (“SCU”) of any changes in their residential or employment information.¹ This father moved and did not tell the SCU of his new, residential address. After he changed residences, the mother filed a violation petition. Having made diligent efforts to serve the father’s last-known residence, the court let the mother serve the father by affix-and-mail. While affix-and-mail service requires the papers to be affixed at the actual domicile of the respondent, the issue, here, is whether the father’s failure to report his change of address to the SCU allows the papers to be served, instead, at the last-known or reported residence.On October 10, 2017, the mother filed this violation petition. By the adjournment date, the mother submitted a defective affidavit of service. The affidavit claimed that service had been completed by leaving the papers with a person of suitable age and discretion. But the mother’s attorney affirmed that the service address was not the father’s actual domicile. The court ruled that the service was defective. By the next adjournment, the mother submitted an affidavit of non-service. The process server went to 67 Garfield Street, Yonkers, NY 10701 on November 28, 2017 at 7:50 a.m., November 29, 2017 at 7:45 p.m., and November 30, 2017 at 3:50 p.m.. On all three days, nobody answered. Finally, on December 1, 2017 at 6:11 p.m., the process server spoke with the father’s ex-wife, who said that the father no longer lived at that address. She also said that “he is avoiding service as there are multiple orders out against him.”² Based upon the affidavit of non-service, the court determined that the mother had made diligent efforts to serve the father. So, the court signed the mother’s order to show cause, authorizing substituted service, including service by affix-and-mail.³On January 5, 2018, the mother submitted the affidavit of service by affix-and-mail at 67 Garfield Street, Yonkers, NY 10701. The father did not appear in court. The court started the willfulness hearing and sent the father a notice of warrant at the service address. A week later, the father, again, did not appear. The court finished the willfulness hearing, found willfulness, set arrears, entered a money judgment, requested that a Judge enter a bench warrant for the father’s arrest, and recommended six months’ incarceration. That same day, a Family Court Judge issued a bench warrant, confirmed willfulness, and entered a commitment order.On September 12, 2018, the father filed a motion to vacate the bench warrant, default judgment, and commitment order. The father claimed that the court lacked personal jurisdiction because the process server mailed the “Order to Show Cause and Summons Violation on December 21, 2017 by first class mail to an address alleged to be the residence of Respondent.”⁴ The father also asked to vacate the default orders upon the ground of excusable default. The parties appeared before the court on October 5, 2018. This court stated the only issue was whether the court had personal jurisdiction to render the default judgment, and that the father had failed to state a meritorious defense to entry of the default orders. The court referred the case to a Family Court Judge to determine whether the father would be incarcerated, pending a hearing. The Judge did not incarcerate the father. Today, the mother’s attorney agreed with the court’s assessment of the case: The only issue was the legal intersection between the reporting requirements of Family Court Act §443 and the service requirements of the CPLR. The father insisted that a hearing was required. The court reserved decision but stated that no hearing was required because there was no factual dispute for the court to resolve.The undisputed facts are that a process server affixed a copy of the violation petition and summons to the door of 67 Garfield Street, Yonkers, NY 10701 on December 20, 2017 at 4:12 p.m.. The next day, a different person mailed the same documents by first-class mail to the same address. In 2016, the father lived at that address but moved without notifying the SCU. On December 20, 2017, when the mother completed the affix-and-mail service, the father did not live at that address.⁵ From 2016 to 2018, the SCU had 67 Garfield Street as the father’s home address.Because the only issue is legal, and not factual, no hearing was required, despite the father’s protestations.⁶ At bottom, the father’s motion and oral arguments did not raise a single factual claim as to whether the service papers were affixed and mailed at the address on December 20 and 21, 2017. Instead, the father’s sole dispute was that he had not lived there since 2016.⁷ If he did not live at the service address, then it was not his actual domicile, as required by CPLR 308 (4).⁸ That is simply a legal issue. Because the father failed to raise a factual dispute, no hearing was required.⁹In child and spousal support cases, a petitioner must serve a respondent a copy of the petition and summons in one of three ways: personal delivery, leave and mail, or by mail alone.¹⁰ When a petitioner has unsuccessfully, but diligently, tried to serve the summons and petition, the court may authorize alternative methods of service under the CPLR, one of which is affix-and mail.¹¹ There is no rigid calculus to determine whether a petitioner has made diligent efforts to serve personally the respondent.¹² Courts, instead, determine whether due diligence has been exercised on a case-by-case basis by focusing on the quality, not the quantity, of attempts at personal delivery.¹³ For example, the process server through a few visits at different times has to make genuine inquiries about the respondent’s whereabouts and place of employment.¹⁴ Or the process server must visit the respondent’s home or workplace at different times, when the respondent reasonably could be expected.¹⁵ Here, a process server attempted to serve the father personally on November 28, 2017 at 7:50 a.m., November 29, 2017 at 7:45 p.m., and November 30, 2017 at 3:50 p.m.. The process server returned to the address on December 1, 2017 at 6:11 p.m. to try to serve the father personally. Except for the November 30 attempt, the rest of the times were reasonable times to expect the father to be at the address. Since the father had not paid child support and had not reported an employment address to the SCU, it was unreasonable for the process server to attempt service at any workplace.¹⁶ Thus, the process server exercised due diligence in trying to serve the father personally, based upon multiple visits at different times, when the father would be expected to be at home. And he spoke with the father’s ex-wife to determine the father’s whereabouts.Once the court found that the process server exercised due diligence, the statute authorized the court to order affix-and-mail service. On December 15, 2017, the court raised the present issue to the mother’s attorney: because the process server’s affidavit said the address was not the father’s actual domicile, how was the service to be accomplished? The mother’s attorney replied that the law required the father to tell the SCU of any changes in his home address. The court countered with the Court of Appeals’ case in Feinstein v. Bergner.¹⁷ There, the plaintiff and defendant had an automobile accident. At the time, the defendant lived with his parents. The plaintiff, after exercising due diligence, obtained the court’s permission to serve the defendant by affix-and-mail at his last-known address. By the time of the service by affix-and-mail, the defendant had moved out of his parents’ home, but his father had forwarded the defendant a copy of the summons and complaint. The Court of Appeals held that the affix-and-mail service was defective because, at the time of the service, the address was not the defendant’s actual domicile. And it did not matter that his father forwarded him a copy of the summons and complaint. The Court distinguished cases, when a defendant may be estopped from raising the defect in the service as a defense, if the defendant engaged in conduct “which was calculated to prevent them from learning of his new address…[s]ince potential defendants ordinarily have no affirmative duty to keep those who might sue them abreast of their whereabouts….”¹⁸By contrast, this father had a legal duty to update both the court and the SCU of “any change [in]…residential and mailing addresses,….”¹⁹ The obligation to report residential and employment information is codified in “Order of support by parent.” The section then ends: “Failure to report such changes shall subject the parent to the provisions of [§454] of this act,” which is the heart of child support’s enforcement provisions. In short, the residential and employment information is needed to enforce the order. Further, every support order states: “IT IS FURTHER ORDERED that the payor, custodial party and any other individual parties immediately notify the Support Collection Unit of any changes in the following information: residential and mailing addresses, social security number, telephone number, driver’s license number; and name, address and telephone numbers of the parties’ employers.” Here, the father, on October 16, 2018, made the adoptive admission through his attorney that he never told the SCU that he had moved from 67 Garfield Street, Yonkers, NY 10701. Had he told the SCU of his change of address, the mother may have been able to have served him personally at his home.But because he failed to notify SCU, he is now estopped to complain of the service defects of the affix-and-mail service. To be sure, a respondent’s deliberate attempt to avoid being served notice of a proceeding bars vacating a default judgment.²⁰ Equity, then, prevents him from objecting now to not receiving notice of the proceeding, when he essentially held out his former residence as his current home.²¹ Otherwise, the father would profit from his transgressions. When a respondent fails to report any changes in residence to the SCU, and the petitioner detrimentally relies upon the erroneous residential information to serve process in an Article Four proceeding, then a respondent should be estopped from complaining that the service upon the prior residence was defective.Thus, the court dismisses that portion of the father’s motion, claiming the court lacked personal jurisdiction to render the judgment.As for the father’s alternative ground of excusable default, he failed to proffer both a reasonable excuse for failing to appear and a meritorious defense to entry of the order of disposition, money judgment, and commitment order. Movant bears the burden of proving a reasonable excuse for not appearing and a meritorious defense to the action.²² Conclusory statements regarding a meritorious defense are insufficient to establish the defense’s merits.²³ And the determination is left to the court’s sound discretion.²⁴ While it is true that the courts liberally grant vacatur of default orders in matrimonial actions,²⁵ preferring, instead, determinations of paternity and of child support on the merits, courts, nevertheless, retain the discretion to deny motions to vacate when a movant fails to prove either a reasonable excuse for not appearing in court or a meritorious defense to the entry of the order of filiation or of child support.²⁶First, the father lacked a reasonable excuse for failing to appear because, as seen above, he is estopped from complaining that the service method was defective. By failing to tell the SCU of his latest home address, he had only himself to blame for not knowing the court date. Why should he now benefit from his disregard of the law? And second, he had no defense to the willfulness finding. In his financial disclosure affidavit, he claimed to work only 8 hours per week, earning $200 weekly, working at a delicatessen. Nowhere did he explain the reason for his severe underemployment, working less than 40 hours per week. He did not submit a job search diary to show that he made a good faith effort to find supplementary employment so that he could pay his support obligation. A willfulness finding is proper when a payor cannot substantiate his job search efforts.²⁷ That is so because the ability to pay support also includes the ability to find gainful employment.²⁸ Also, in his affidavit, the father said he had worked “for nearly two years” from about May or June 2016 until 2018.²⁹ But he submitted no proof of his 2016 income. Having failed to substantiate his self-serving claims with documentation, he did not come forward with some competent and credible evidence of his inability to make the required payments.³⁰ Because he failed to prove that he made a good faith effort to find supplemental employment so that he could pay his support obligation in full, and to prove with competent, credible evidence his income, the father lacked a defense to the willfulness finding.For those reasons, the court denies the father’s motion to vacate.Dated: October 16, 2018