        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1304.1
CAF 13-02031
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF TERIZA SHEHATOU,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

EMAD LOUKA, RESPONDENT-APPELLANT.


DIBBLE & MILLER, P.C., ROCHESTER (CRAIG D. CHARTIER OF COUNSEL), FOR
RESPONDENT-APPELLANT.

ALDERMAN AND ALDERMAN, SYRACUSE (EDWARD B. ALDERMAN OF COUNSEL), FOR
PETITIONER-RESPONDENT.

SUSAN BASILE JANOWSKI, ATTORNEY FOR THE CHILDREN, LIVERPOOL.


     Appeal from an order of the Family Court, Onondaga County
(Michael L. Hanuszczak, J.), entered February 14, 2013 in a proceeding
pursuant to Family Court Act article 4. The order, insofar as
appealed from, applied the fugitive disentitlement doctrine to
respondent.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, and the matter is
remitted to Family Court, Onondaga County, for further proceedings in
accordance with the following Memorandum: We previously dismissed
respondent’s appeal from an “order of dismissal” entered by Family
Court upon declining to sign an order to show cause seeking to vacate
two orders entered on respondent’s default. One of the orders
determined that respondent was in willful violation of a child support
order, and the other order committed him to a term of six months of
incarceration (Matter of Shehatou v Louka, 118 AD3d 1357). The court
also issued a warrant for respondent’s arrest (id.). We determined
that the fugitive disentitlement theory applied both to respondent’s
order to show cause to vacate the default orders and to the subsequent
appeal (id. at 1358). We nevertheless granted respondent leave to
move to reinstate his appeal upon the posting of an undertaking in the
amount of $25,000 with the court within 60 days of service of our
order with notice of entry (id.). Respondent timely posted the
undertaking and his motion to reinstate the appeal was granted by this
Court.

     “The principal rationales for the doctrine [of fugitive
disentitlement] include: (1) assuring the enforceability of any
decision that may be rendered against the fugitive; (2) imposing a
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                                                         CAF 13-02031

penalty for flouting the judicial process; (3) discouraging flights
from justice and promoting the efficient operation of the courts; and
(4) avoiding prejudice to the nonfugitive party” (Wechsler v Wechsler,
45 AD3d 470, 472). By posting an undertaking in the amount of the
child support arrears, we conclude that respondent has demonstrated
that he is not flouting the judicial process and has provided a means
of enforcement of the court’s order determining the amount of child
support arrears in the event that the court’s determination is
unchanged (see Family Ct Act § 471; CPLR 2502 [c]). We conclude that
the fugitive disentitlement theory no longer applies to respondent
(see generally Wechsler v Wechsler, 58 AD3d 62, 65, appeal dismissed
12 NY3d 883, reconsideration denied 13 NY3d 810), and thus we reverse
the order insofar as appealed from and remit the matter to Family
Court to determine respondent’s application to vacate the orders
entered on his default and the warrant for his arrest.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
