Wadlow v. Wadlow

Appeal from an amended order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), entered September 7, 2004 in a proceeding pursuant to Family Court Act article 4. The amended order denied respondent’s objections to the order of the Support Magistrate that continued in full force and effect a prior order entered upon respondent’s default. It is hereby ordered that the amended order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Family Court properly denied the objections of respondent to the order of the Support Magistrate that continued in full force and effect a prior order entered upon respondent’s default. That prior order granted the petition seeking an upward modification of respondent’s child support obligation. The record supports the Support Magistrate’s conclusion that the failure of respondent to receive notice of the proceeding was the result of his decision “to ignore notice of certified mail and leave such mail unclaimed at the post office,” and thus his default is not excusable (Rifenburg v Liffiton Homes, 107 AD2d 1015, 1016 [1985]; see Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622 [1987]; Cascione v Acme Equip. Corp., 748 23 AD2d 49, 50 [1965]). Respondent did not timely challenge the order entered upon his default based upon lack of personal jurisdiction (see Electric Ins. Co. v Grajower, 256 AD2d 833, 834-835 [1998], lv dismissed 93 NY2d 848 [1999]), and thus the court properly rejected his objection based upon lack of personal jurisdiction (see Matter of Wideman v Murley, 155 AD2d 841, 842 [1989]; Matter of Commissioner of Social Servs. v Paulino F., 146 Misc 2d 1014, 1015 [1990]). Present—Hurlbutt, J.P., Scudder, Gorski, Green and Hayes, JJ.