Matter of Figaro v White
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Attorneys and Parties
Brief Summary
Family law dispute involving child custody and a family offense order of protection under Family Court Act articles 6 [custody and visitation proceedings] and 8 [family offense proceedings].
The Supreme Court treated the father as having defaulted after he exited the courtroom, awarded the mother sole legal and physical custody, suspended the father's parenting time, issued a final order of protection, and later denied the father's motion to vacate those orders in a corrected order dated December 10, 2024.
The Appellate Division reversed the corrected order dated December 10, 2024, vacated the March 23, 2022 custody order and order of protection, and remitted for a hearing and new determination. The appeal from the separate December 10, 2024 order correcting a ministerial error was dismissed because the father was not aggrieved.
The father showed a reasonable excuse and a potentially meritorious defense under CPLR 5015(a)(1) [relief from a default judgment or order upon a reasonable excuse and a potentially meritorious claim or defense], and the trial court should not have proceeded by default where the father appeared with counsel, there was no willful nonappearance, and custody was decided without a full best-interests hearing despite unresolved factual disputes.
Background
The parties are married but live separately and have one child born in 2013. In January 2021, the mother filed petitions seeking sole legal and physical custody and alleging family offenses. On March 23, 2022, after the father left the courtroom, the Supreme Court deemed him in default, granted the mother sole legal and physical custody, suspended all parenting time between the father and the child, found that the father committed harassment in the second degree, criminal mischief, and attempted assault, and issued a final order of protection through March 22, 2024. In June 2022, the father moved to vacate those default orders. A temporary order dated August 15, 2022 denied that motion, but on December 10, 2024, the court corrected that temporary order under CPLR 5019(a) [correction of a mistake, defect, or irregularity not affecting a substantial right] by deleting the denial language and then, in a corrected order the same day, again denied vacatur. The father appealed both December 10, 2024 orders.
Lower Court Decision
The Supreme Court concluded that the father had defaulted when he exited the courtroom and entered final custody and family offense relief in the mother's favor without a full evidentiary hearing. It later denied the father's attempt to vacate those orders, even after correcting the prior temporary order to remove what it viewed as a ministerial error.
Appellate Division Reversal
The Appellate Division dismissed the appeal from the December 10, 2024 order granting relief under CPLR 5019(a) because the father received the relief he requested and therefore was not aggrieved under CPLR 5511 [only an aggrieved party may appeal]. But it reversed the corrected order. The court held that the Supreme Court should not have issued the custody order or order of protection on default where the father appeared with counsel and counsel remained to participate. Even assuming a default occurred, the father established a reasonable excuse by explaining that he believed the matter had been adjourned, showed no willfulness, had attended prior appearances, and moved to vacate within about three months. He also showed potentially meritorious defenses. Because custody was decided without a full hearing or best-interests findings and factual disputes remained, the matter was remitted for a hearing and a new determination on the mother's custody and family offense petitions.
Legal Significance
This decision reinforces New York's liberal policy favoring vacatur of defaults in child custody proceedings and emphasizes that a court's ability to proceed on default does not eliminate its duty to determine custody based on the child's best interests after a full and comprehensive hearing when material facts remain disputed. It also confirms that an appeal from an expired order of protection is not academic where lasting consequences may flow from the underlying family offense findings.
In custody and family offense cases, a perceived default will not stand where the parent appeared with counsel, the nonappearance was not willful, and the court made a final custody determination without a proper best-interests hearing; New York appellate courts strongly prefer decisions on the merits in matters affecting children.