Matter of Adriana K. v. Grzegorz K. ( 2023 )

Matter of Adriana K. v Grzegorz K. (2023 NY Slip Op 01958)

Matter of Adriana K. v Grzegorz K.

2023 NY Slip Op 01958

Decided on April 18, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 18, 2023
Before: Webber, J.P., Friedman, Singh, Scarpulla, Rodriguez, JJ.

Docket No. F-04691-18, F-04691-19A Appeal No. 44-44A&[M-1050] Case No. 2022-01785

[*1]In the Matter of Adriana K., Petitioner-Respondent,

v

Grzegorz K., Respondent-Appellant.

Andrew J. Baer, New York, for appellant.

The Law Offices of Andrew T. Coyle, Syracuse (Andrew T. Coyle of counsel), for respondent.

Order, Family Court, New York County (Carol Goldstein, J.), entered on or about January 6, 2022, to the extent it sentenced respondent father to incarceration for a three-month term and set the purge amount at $15,000, upon a finding that he willfully violated an order mandating child support payments, unanimously affirmed, without costs. Appeal from so much of the order that confirmed the willfulness finding by the Support Magistrate entered upon respondent's default, unanimously dismissed, without costs, as taken from a nonappealable order.

Respondent's appeal from the willfulness finding made by the Support Magistrate and confirmed by the Family Court must be dismissed, as the finding was made upon respondent's default and is therefore not directly appealable (see Matter of Afia E. v Japheth S., 190 AD3d 580, 580 [1st Dept 2021]; Matter of Elizabeth L. v Kevin O., 179 AD3d 404, 405 [1st Dept 2020]). Respondent moved to vacate his default but did not seek any appeal from the order denying that motion, which would have been the proper way to obtain review (see Squitieri v Kaufman, 193 AD3d 534, 534 [1st Dept 2021]).

On the merits, Family Court, upon a finding on default by the Support Magistrate, held that respondent willfully violated an order mandating child support payment, properly imposed incarceration for a term of three months, and set the purge amount of $15,000. Family Court was not required to hold a second hearing before issuing the order directing that respondent be incarcerated for a period of at least three months if he did not pay the purge amount (see Matter of Garuccio v Curcio, 174 AD3d 804, 804-805 [2d Dept 2019]), and the court had discretion to impose a three-month sentence along with that purge amount (Family Court Act § 454[3][a]).

We have considered respondent's remaining contentions and find them unavailing.

M-2023-1050 - Matter of Adriana K. v Grzegorz K.

Motion to dismiss appeal, denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 18, 2023