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

414
CAF 11-02254
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


IN THE MATTER OF CHAUTAUQUA COUNTY DEPARTMENT
OF SOCIAL SERVICES, ON BEHALF OF COLLEEN A.Y.,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

RITA M.S., RESPONDENT-APPELLANT.
(PROCEEDING NO. 1.)
----------------------------------------------
IN THE MATTER OF CHAUTAUQUA COUNTY DEPARTMENT
OF SOCIAL SERVICES, ON BEHALF OF COLLEEN A.Y.,
PETITIONER-RESPONDENT,

                    V

KENNETH M.Y., RESPONDENT-APPELLANT.
(PROCEEDING NO. 2.)


LAW OFFICE OF ROBERT D. ARENSTEIN, NEW YORK CITY (ROBERT D. ARENSTEIN
OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

JULIE B. HEWITT, MAYVILLE, FOR PETITIONER-RESPONDENT.

ANDREW T. RADACK, ATTORNEY FOR THE CHILDREN, SILVER CREEK, FOR COLLEEN
Y. AND KELLY Y.

MICHAEL J. SULLIVAN, ATTORNEY FOR THE CHILDREN, FREDONIA, FOR MICHAELA
Y. AND BRIDGET Y.


     Appeals from an order of the Family Court, Chautauqua County
(Judith S. Claire, J.), entered February 4, 2011 in proceedings
pursuant to Family Court Act article 4. The order dismissed the
objections of respondents and affirmed the orders of the Support
Magistrate.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner, Chautauqua County Department of Social
Services, commenced these proceedings pursuant to Family Court Act
article 4 seeking an order directing Rita M.S., the respondent in
proceeding No. 1 (hereafter, stepmother), and Kenneth M.Y., the
respondent in proceeding No. 2 (hereafter, father), both of whom are
nonresidents of New York, to furnish support for the four children who
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                                                         CAF 11-02254

are the subjects of these proceedings (collectively, children).
Petitioner sought child support retroactive to the time that the
children entered the foster care system in New York. Upon
respondents’ default, the Support Magistrate, inter alia, directed the
father to pay child support in the amount of $775 per week effective
the date on which the children were placed in foster care and directed
the stepmother to notify the Support Collection Unit of any change in
employment status and health insurance benefits. The support orders
are dated July 6, 2010 (hereafter, July orders). Respondents did not
file objections to the July orders.

     In October 2010, respondents moved to vacate the support orders
and to dismiss the support proceedings pursuant to CPLR 5015 (a) (4)
based upon Family Court’s alleged lack of personal jurisdiction. By
orders dated November 9, 2010 (hereafter, November orders), the
Support Magistrate “denied and dismissed” respondents’ motions to
vacate the support orders, determining that the court had jurisdiction
over respondents pursuant to Family Court Act § 580-201 (5).
Respondents filed objections to the November orders, and Family Court
dismissed those objections and affirmed the November orders of the
Support Magistrate.

     On appeal, respondents contend that the court erred in failing to
review their challenges to the July orders in the context of their
objections to the November orders. We reject that contention.
Although respondents are correct that the proper procedure to
challenge an order entered upon a default is by way of a motion to
vacate the default pursuant to CPLR 5015 (a) rather than by way of the
filing of objections pursuant to Family Court Act § 439 (e) (see
Matter of Garland v Garland, 28 AD3d 481, 481; Matter of Wideman v
Murley, 155 AD2d 841, 842), here respondents moved to vacate the July
orders and to dismiss the proceedings solely on the basis of alleged
lack of personal jurisdiction pursuant to CPLR 5015 (a) (4), not on
the basis of excusable default pursuant to CPLR 5015 (a) (1). Thus,
respondents’ motions brought up for review only the issue of
jurisdiction, not the underlying merits of the July orders (see
generally Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825; Siegel,
Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR
C5015:9, at 220; cf. Labozzetta v Fabbro, 22 AD3d 644, 645-646; Pilawa
v Dalbey, 275 AD2d 1035, 1036; Pallette Stone Corp. v Ebert, 210 AD2d
807, 808).

     Respondents further contend that the court’s jurisdictional
determination must be vacated because it was not based upon competent
evidence. We reject that contention. Contrary to respondents’
contention, the Support Magistrate was not required to hold a hearing
on the issue of personal jurisdiction before issuing the July orders.
The support petitions alleged that New York had long-arm jurisdiction
over respondents pursuant to Family Court Act § 580-201 (5), and
respondents failed to answer the petitions, failed to move to dismiss
the petitions for lack of personal jurisdiction (see CPLR 3211 [a]
[8]), and failed to appear in court in opposition to the petitions.
We thus conclude that the Support Magistrate properly determined based
upon the documentation provided by petitioner that it had long-arm
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                                                         CAF 11-02254

jurisdiction over respondents. When respondents moved to vacate the
July orders on the ground that the court lacked personal jurisdiction,
the Support Magistrate was faced with conflicting submissions on that
issue from respondents and petitioner. Assuming, arguendo, that
respondents’ submissions disputed the underlying jurisdictional facts
and not simply the legal conclusions to be drawn therefrom,
respondents would have been entitled to a hearing on the issue of
personal jurisdiction (see generally Saxon Mtge. Servs., Inc. v Bell,
63 AD3d 1029; Penachio v Penachio, 27 AD3d 540, 541; Cliffstar Corp. v
California Foods Corp., 254 AD2d 760, 760-761). Respondents, however,
waived any right to a hearing on jurisdiction by submitting their
motion on papers only (see generally Matter of Pascarella v
Pascarella, 66 AD3d 909, 910). We further conclude that respondents
failed to preserve for our review their contention that the Support
Magistrate’s jurisdictional findings were not based upon competent
evidence inasmuch as they did not challenge the competence of the
evidence submitted by petitioner in their motions to vacate the July
orders (see generally Mariano v New York City Tr. Auth., 38 AD3d 236,
236; Matter of Schulman, 161 AD2d 874, 875). Although respondents
contended in their objections to the November orders denying their
motions to vacate the July orders that those orders were not based
upon competent proof, Family Court properly determined that such
contention was unpreserved inasmuch as it was not raised before the
Support Magistrate in the motions to vacate (see generally Lopez v 724
Mgt., LLC, 72 AD3d 453, 453; Matter of Redmond v Easy, 18 AD3d 283,
283-284).

     Contrary to respondents’ further contention, we conclude that the
court properly determined that it had personal jurisdiction over them.
Family Court Act § 580-201 provides that, “[i]n a proceeding to
establish . . . a support order . . ., the tribunal of this state may
exercise personal jurisdiction over a nonresident individual . . .
if[, inter alia,] the child[ren] reside[] in this state as a result of
the acts or directives of the individual” (§ 580-201 [5]). Here, the
children clearly resided in New York as a result of respondents’ acts
and directives. After respondents were arrested and each charged with
felony child abuse against the children, the Magistrate Court for Dona
Ana County, Las Cruces, New Mexico ordered respondents to avoid all
contact with the children. In light of the no-contact order,
respondents requested that the children be placed in the care of the
children’s aunt in New York. In an August 2008 letter to the New
Mexico Children, Youth and Families Department (CYFD), the father
stated that “[t]he relative who will be available to take custody of
any or all of the girls on our behalf is their aunt who would take
them back to her dairy farm. We request they be released to her
Monday 8/11/08 . . . [I]t is beyond all doubt in their best interest
to be in such household rather than in foster care. She will be here
as early tomorrow as you say they might be released.” To that end,
respondents executed a limited power of attorney authorizing the aunt
to withdraw one of the children from school, and executed durable
powers of attorney for health care designating the aunt as the
children’s agent for health care decisions. On August 11, 2008, CYFD
and the aunt entered into a “safety contract” pursuant to which the
aunt agreed to provide for the children’s basic needs. In addition,
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                                                         CAF 11-02254

the safety contract stated that the aunt understood that respondents
“have voluntarily placed the children in [her] care for an
undetermined length of time,” and that she was “to contact
[respondents] if [she were] in need of any financial assistance for
the [children], as the[ respondents] are still legally responsible for
the[ children’s] well-being.” Thereafter, the aunt transported the
children to her home in New York. Under those circumstances, we
conclude that the children began residing in New York “as a result of
the acts or directives” of respondents within the meaning of Family
Court Act § 580-201 (5), and thus that the court properly exercised
personal jurisdiction over respondents (see generally Matter of Daknis
v Burns, 278 AD2d 641, 641-643).

     Respondents further contend, however, that the assertion of
jurisdiction in this case violates due process. We reject that
contention. “As a general rule, in order for the courts of one State
to exercise jurisdiction over an individual who is domiciled in
another State, due process requires that there be sufficient minimum
contacts between that individual and the forum State such that the
forum State’s assertion of jurisdiction will not offend ‘ “traditional
notions of fair play and substantial justice” ’ ” (Matter of Shirley
D. v Carl D., 224 AD2d 60, 63, quoting International Shoe Co. v
Washington, 326 US 310, 316). In particular, the subject individual’s
“conduct and connection with the forum State [must be] such that he
[or she] should reasonably anticipate being haled into court there”
(World-Wide Volkswagen Corp. v Woodson, 444 US 286, 297).

     Respondents rely on Kulko v Superior Ct. of California (436 US
84), in which the United States Supreme Court addressed the issue of
personal jurisdiction in a child support action. There, the Supreme
Court held that the father’s mere “acquiescence” in his daughter’s
desire to live with the mother in California did not confer
jurisdiction over the father in the California courts (id. at 94).
Respondents contend that they merely acquiesced in the arrangement
between CYFD and the aunt to place the children temporarily in New
York with the aunt. We reject that contention. Unlike in Kulko,
where the father assented to his daughter’s desire to live with her
mother in California, here respondents chose to send the children to
New York after they were ordered to have no contact with the children.
Respondents notified CYFD that they wished the children to reside with
the children’s aunt in New York rather than being placed in foster
care in New Mexico, and they executed the necessary documents to
facilitate the transfer of the children to the aunt. Respondents’
voluntary decision to place the children with the aunt in New York and
their formal acts in effectuating that decision constitute more than
mere acquiescence (see Daknis, 278 AD2d at 643), and the fact that
respondents did not make the children’s travel arrangements is not
dispositive (see Kulko, 436 US at 98).

     Further, as distinguished from Kulko, here respondents
“ ‘purposefully avail[ed themselves] of the privilege of conducting
activities within th[is] State’ ” (id. at 94), by sending their
children to New York to live with their aunt, a New York resident,
without providing financial support for the children. Pursuant to the
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                                                         CAF 11-02254

safety contract, the aunt “agree[d] to provide for the [children’s]
basic needs, to include their medical, educational, and mental health
needs.” The aunt further agreed that she would “contact [respondents]
if [she was] in need of any financial assistance for the [children],
as they are still legally responsible for their well-being” (emphasis
added). As the Support Magistrate aptly noted, “[i]t [wa]s
foreseeable, certainly that someone, whether it be [petitioner] or the
aunt herself, was, at some point, going to be asking for support of
children that are not theirs.” We thus conclude that respondents’
conduct in relation to New York was such that they “should [have]
reasonably anticipate[d] being haled into court []here” (World-Wide
Volkswagen Corp., 444 US at 297) and, thus that the court properly
exercised personal jurisdiction over respondents (see generally Matter
of Bowman v Bowman, 82 AD3d 144, 152-153; Daknis, 278 AD2d at 643).
Respondents’ further contention that the court should have made
separate jurisdictional determinations with respect to the father and
the stepmother and each child is unpreserved for our review inasmuch
as it was not raised in their motion to vacate the July orders but,
rather, was raised for the first time in their objections to the order
of the Support Magistrate denying their motion to vacate (see
generally Lopez, 72 AD3d at 453; see also Redmond, 18 AD3d at 283-
284). In any event, the court’s assertion of personal jurisdiction
was properly based upon evidence that each of the children resided in
New York as a result of the acts and/or directives of both
respondents.

     Respondents’ contention that Family Court Act § 580-201 (5) is
unconstitutionally void because the phrase “acts or directives” is
vague is not properly before us because there is no indication in the
record that respondents notified the Attorney General of their
constitutional challenge, as required by CPLR 1012 (b) (1) (see Koziol
v Koziol, 60 AD3d 1433, 1434-1435, appeal dismissed 13 NY3d 763).

     Finally, although we agree with respondents that the Support
Magistrate abused his discretion in refusing to consider their reply
papers on the motion to vacate, we conclude that such error is
harmless inasmuch as the arguments raised in the reply papers are
without merit for the reasons discussed above.




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
