Menaldino v. Johnson , 162 A.D.2d 758 ( 1990 )


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  • Mahoney, P. J.

    Appeal from an order of the Family Court of Warren County (Austin, J.), entered November 10, 1988, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, for support of respondents’ child.

    In 1988, respondents’ son was placed in petitioner’s custody as a person in need of supervision. Petitioner sought an order directing respondents to pay for support of their child during the period of custody. At a preliminary hearing, a temporary order of support was entered and a trial date set. The trial was adjourned until September 30, 1988, at which time respondents did not appear. The Hearing Examiner entered a default order directing respondents to pay $848 per week for support. Respondents filed written objections to the support order and Family Court dismissed those objections. Respondents appeal.

    Respondents’ failure to appear for the hearing resulted in a default. It is well settled that defaults are subject to challenge not by direct appeal but by acting pursuant to CPLR 317 or 5015. Since respondents have not pursued these avenues, they are not entitled to relief on this appeal (see, Matter of Wideman v Murley, 155 AD2d 841). Contrary to respondents’ suggestion, their letter to Family Court dated September 26, 1988 cannot be read as a request for an adjournment.

    Appeal dismissed, without costs. Mahoney, P. J., Kane, Yesawich, Jr., Levine and Mercure, JJ., concur.

Document Info

Citation Numbers: 162 A.D.2d 758

Judges: Mahoney

Filed Date: 6/14/1990

Precedential Status: Precedential

Modified Date: 1/13/2022