Wideman v. Murley , 155 A.D.2d 841 ( 1989 )

— Mahoney, P. J.

Appeal from an order of the Family Court of Albany County (Tobin, J.), entered November 4, 1988, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, to increase the amount respondent pays for support of his child.

The parties were married in 1967 and divorced some 12 years later. They have one son for whose support respondent pays $40 per week pursuant to an order dated April 28, 1982. Petitioner commenced this proceeding to increase the amount of support to assist in paying the child’s college expenses. On November 4, 1987, the parties and their attorneys appeared before a Hearing Examiner and the matter was set down for a hearing on January 14, 1988. Respondent and his attorney failed to appear on that date and the hearing was conducted in their absence. As a result of findings made by the Hearing Examiner, an order was made modifying the prior order and directing respondent to pay $3,500 to petitioner for one half the cost of higher education for their son for the 1987-1988 academic year, and a like amount for the 1988-1989 academic year. Further, the order directed respondent to continue paying petitioner $40 per week child support until further order of the court. The order was entered March 1, 1988, although respondent did not receive notice of it until March 14, 1988. Respondent filed written objections to the order on April 1, 1988. Family Court, relying on Family Court Act § 439 (e), dismissed the objections as untimely and this appeal followed.

Assuming that respondent’s specific written objections to the Hearing Examiner’s final order were timely filed, we find no basis to grant respondent relief. It is evident that respondent’s failure to appear at the January 14, 1988 hearing resulted in a default, which can be opened only by acting pursuant to CPLR 317 or 5015. Respondent has not pursued either of these courses of conduct and, accordingly, is not entitled to relief.

Order affirmed, with costs. Mahoney, P. J., Casey, Weiss, Levine and Harvey, JJ., concur.