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Odunbaku v Odunbaku


New York Slip Op07705

November 17, 2016


Mother filed suit to obtain child support from the father. A support order was made for $236 per week. The order was subsequently modified to $25 per month. These findings were mailed to the mother, but not to her lawyer. Forty one days later, the mother filed objections. Her objection was deemed untimely and the court affirmed the existing orders. The appellate court reversed. The court held that if a party is represented y counsel, Family Court Act 439(e) the time requirement for an objection doesn’t start running until it is mailed to counsel.

The court applied the precent of the Matter of Bianca v. Frank (43 NY2d 168 [1977] to Family Court Act 439 (e) and agree that if a party is represented by a lawyer, the time for objection doesn’t start to run until it is mailed to the lawyer.

  1. Odunbaku (mother) used Staten Island Legal Services to assist her in obtaining child support from G. Obunbaku (father). The couple had a son between them. After the hearing, the magistrate found the fathers testimony unreliable and awarded the mother $236 per week. The father never made the payments. The mother filed a violation petition, while the father filed a motion to modify payments.

The judge then determined that the father was in violation, and granted the mother $16,940 to the mother. The father’s petition was dismissed.

While the father field for a modification, he paid $7,000. The mother filed another petition. During this hearing, the father submitted evidence of his inability to pay (he was on disability). Another judge modified the order, reducing his support to $25 a month. The order, in keeping with Family Court Act 439 (e) said that written documentation must be filed within 30 days of the date of service.

The court clerk mailed the order to the plaintiff and the defendant, but to neither of the party’s lawyers. Counsel had no way to learn about the order. The following month, the plaintiff notified her lawyer. The lawyer went to court to obtain a copy of the order, and did not receive all of the paperwork.

Forty one days later, the lawyer for the plaintiff filed an objection. Counsel explained that they had never received the order. The court denied the petition for being late.

The court cited 439 ( e) which stated that specific objections can be filed within 30 days of the order, or 35 days if the parties receive service by mail. The court said that mailing the order to the parties satisfied section 439 (e ) and [22 NYCRR 205.36(b)[FN1] and stated that neither code section requires that the order be mailed to counsel.

The mother appealed, relying on Matter of Bianca v Frank (43 NY2d 168 [1977]. The appellate division affirmed and dismissed the mother’s appeal.

The current court franted leave to appeal (26 NY 3d 913 [2015] and the decision is reversed.

The court said that in Bianca v Frank, they held once counsel has appeared, time cant start running until counsel is served. The principle would not apply if the requirement was specifically excluded. Absent this, any notice must be served on a party and upon the attorney representing them.

The Bianca rationale is straight forward and applies here. Once a party is represented by counsel, the attorney is considered the agent in all areas relevant to the case. Not mailing orders to the lawyers impairs the appropriate access to justice to individuals and undermines their legal representation. Case is reversed.

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