Legal Question in Family Law in New York
child support , personal service
Can personal service be done on Sunday? Court order can only go back to date filed? ex: modification filed in december2005 can not go back to april 2005? I am writing the court to appeal a decision of child support. I was put in default for not appearing, papers were put in my car on a sunday, order states I was served on feb. 19 2006 which was sunday on affidavit of service it clearly states papers CANNOT be served on sunday's. The papers were filed in dec. 2005 the order changes support going back to april 2005. I am in search of correct information for my appeal. Thank you
3 Answers from Attorneys
Re: child support , personal service
1. You can NOT be served on a Sunday.
2. Leaving papers "in your car" is NOT proper service.
3. A CS modification is NOT retroactive. Ex. filing today affects CS pymts from today forward and NOT the last 6 months.
4. Since you were improperly served, the court had no jurisdiction over you to order anything and any such order is a nullity.
Re: Appeal not available
Unfortunately as it was a default you cannot appeal you must restore the matter to have it dismissed. though the order is a nullity it none the less exits and has to be vacated.
The Support Office will atttempt to enforce it.
Re: child support , personal service
The good news is that you will win a motion to vacate the order based on inadequate service. Then you can fight the order in the court as if the previous (now vacated) decision was never made.
It is important that the order was issued in default because if you do anything before claiming improper service, the improper service claim will no longer be available.
You are welcome to a consultation for no fee.
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