Feliz v. Rojas

In a child support proceeding pursuant to Family Court Act article 4, the father appeals, as limited by his brief, from so much of (1) an order of the Family Court, Westchester County (James, H.E.), entered March 28, 2003, as determined that he was not entitled to a credit or offset for past due child support, and (2) an order of the same court (Walker, J.), entered September 12, 2003, as denied his objections to the order entered March 28, 2003.

Ordered that the appeal from the order entered March 28, 2003, is dismissed, as that order was superseded by the order entered September 12, 2003; and it is further,

Ordered that the order entered September 12, 2003, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the petitioner.

Family Court Act § 439 (e) provides, in pertinent part, that “[a] party fifing objections shall serve a copy of such objections upon the opposing party,” and that “[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections.” By failing to file proper proof of service of a copy of his objections on the mother, the father failed to fulfill a condition precedent to filing timely written objections to the hearing examiner’s order (see Matter of Lane v Lane, 8 AD3d 486 [2004]; Matter of Happich v Happich, 285 AD2d 509 [2001]). Florio, J.P., Krausman, Fisher and Lifson, JJ., concur.