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Fugitive Disentitlement Doctrine Applied to Dismiss Appeal of Wife Whose Child Support Payments Were In Arrears and Who Had Moved to Nigeria

The Second Department, in a full-fledged opinion by Justice Roman, applied the fugitive disentitlement doctrine where the wife, whose child support payments were in arrears, had left the jurisdiction and was living in Nigeria.  The Second Department determined the criteria for fugitive disentitlement had been met and dismissed the wife's appeal on that ground:

“It has been settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his [or her] appeal” … . The “fugitive disentitlement doctrine,” which has its origin in criminal law, is based upon the inherent power of the courts to enforce their judgments, and has long been applied to those who evade the law while simultaneously seeking its protection … . * * *

To apply the fugitive disentitlement doctrine, there must be a “connection between a defendant's fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response” … . The doctrine has been extended to the dismissal of appeals in civil cases provided there is likewise a nexus between the appellant's fugitive status and the appellate proceedings … . The nexus requirement is satisfied in civil cases “where the appellant's absence frustrates enforcement of the civil judgment” … . * * *

Applying these principles here, we find that dismissal of the appeal is warranted pursuant to the fugitive disentitlement doctrine. The record reveals that the mother deliberately removed herself from the jurisdiction of the New York courts concomitant with the filing of the October 2011 violation petition, which alleged that she had willfully failed to obey the December 2009 child support order. She thereafter failed to personally appear before the Family Court, and a bench warrant was issued to secure her return. However, the mother continued to evade the court, rendering her a fugitive … .

Additionally, there is a nexus between the mother's fugitive status and the appellate proceedings, since her fugitive status related to her failure to comply with the Family Court's prior orders and her refusal to personally appear before that court. Indeed, “by her default and absence,” the mother is “evading the very orders from which she seeks appellate relief” … . Further, the mother's absence from New York has frustrated the father's efforts to enforce the prior child support orders … . Matter of Allain v Oriola-Allain, 2014 NY Slip Op 07151, 2nd Dept 10-22-14

 

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