FEBRUARY 2, 2022 DECISIONS

Matter of V. (Anonymous) v. E. (Anonymous), 2021-02954

In June 2020, the petitioner commenced this proceeding for a declaration that he is the father of the subject child and an order for genetic testing.  Following a determination that the mother married her husband in April 2017, the Support Magistrate denied the petition and dismissed the proceeding.  The petitioner then filed objections to the Support Magistrate’s order, which were denied by the Family Court in a March 10, 2021 order.  The petitioner appealed.

The Second Department found that the Family Court properly denied the petitioner’s objections to the Support Magistrate’s order on the procedural ground that the petitioner failed to timely file sufficient proof of service of a copy of the objections upon the mother.  The petitioner’s proof of service was not filed with the Family Court until 23 days after the petitioner had already filed the objections, and 14 days after the time to file objections with proper proof of service had expired (see Family Court Act § 439(e).

By failing to timely file proof of service of a copy of his objections upon the mother, the petitioner failed to fulfill a condition precedent for Family Court review of his objections (see Matter of Sheridan v. Koelmel, 190 AD3d 859; Matter of Hopkins v. Hopkins, 178 AD3d 1045; Matter of Ishmael A. A.-S. v. Sacha C., 169 AD3d 662).  Thus, the objections were properly denied, and the issues raised by the petitioner on this appeal are not reviewable (see Matter of Sheridan v. Koelmel, 190 AD3d 859; Matter of Hopkins v. Hopkins, 178 AD3d 1045; Matter of Ishmael A. A.-S. v. Sacha C., 169 AD3d 662).

 

Lezama v. Pedraza, 2018-10028

The plaintiff and the defendant, both born in Mexico, were married in Mexico in 1990.  In or around February 2016, the plaintiff commenced this action for a divorce and ancillary relief in New York, where the parties currently reside, seeking “equitable distribution of the marital property.”  By order to show cause dated September 9, 2016, the defendant moved to confirm and enforce the parties’ alleged separation of property election under Mexican law as evidenced by, among other things, an alleged prenuptial agreement, which consisted of a marked checkbox on their marriage certificate, electing a “separation property regime.”  In an order, the court denied that branch of the defendant’s motion.  Thereafter, the parties were divorced by a judgment of divorce dated June 21, 2018.  The defendant appealed.

The evidence submitted by the defendant was insufficient to establish that the marriage certificate containing the separation of property election conformed to the requirements under Mexican law.  Thus, it was not valid or enforceable in New York (see Domestic Relations Law § 236[B][3]; Real Property Law § 301-a; see generally Galetta v. Galetta, 21 NY3d 186; Matisoff v. Dobi, 90 NY2d 127; cf. Cohen v. Cohen, 93 AD3d 506, 507).