Service Of Objections Must Be Made On Counsel: Third Department Declares Noncompliant Family Court Orders Void Where Prejudice Is Shown

Introduction

In In the Matter of Lea R. Andersen v. Christopher M. Bosworth, 2025 N.Y. Slip Op. 1029 (3d Dept Feb. 20, 2025), the Appellate Division, Third Department, reversed a Family Court order in a child support modification proceeding and dismissed the petition. The decision turns on a crisp procedural point with sweeping practical implications: when a party is represented by counsel, objections to a Support Magistrate’s order under Family Court Act § 439(e) must be served on that party’s attorney pursuant to CPLR 2103. Failure to do so—where it causes prejudice—renders the Family Court’s order on objections, and all cascading orders that follow, void.

The case arose out of a long-running child support dispute between the child’s mother (petitioner-respondent) and father (respondent-appellant), whose 2011 stipulation incorporated into a support order included an opt-out from the later-enacted “three years/15% income change” modification triggers. After the Support Magistrate dismissed the mother’s 2022 upward modification petition for failure to show a qualifying change in circumstances under the parties’ opt-out regime, the mother filed objections. Those objections were not served on the father’s counsel. The Family Court nevertheless granted the objections, reversed course on the opt-out, and increased support. The Third Department vacated that path entirely on the service defect and reinstated the Support Magistrate’s 2022 dismissal.

Summary of the Opinion

• Nonfinality and appealability: The Third Department first clarified that Family Court’s February 10, 2023 order granting objections and remanding was nonfinal and not independently appealable; the father’s failure to perfect an earlier appeal from that interlocutory order did not waive his right to appellate review within the later appeal from the final dispositional order.
• Service of objections: Family Court Act § 439(e) requires a party filing objections to serve the opposing party, who then has 13 days to serve and file a rebuttal. Because § 439(e) does not specify service on counsel, Family Court Act § 165(a) imports CPLR 2103, which requires that papers in a pending action be served on the party’s attorney when the party is represented.
• Application: The record showed the mother did not serve the father’s attorney with her objections and that counsel only learned of the objections when Family Court granted them. The father promptly moved to vacate based on improper service and prejudice. Family Court summarily denied the motion.
• Holding: The Third Department held service on counsel was required, the omission was prejudicial because it deprived the father of the § 439(e) rebuttal opportunity, and, under these circumstances, Family Court’s February 10, 2023 order and all subsequent orders were void. The Support Magistrate’s December 30, 2022 order dismissing the mother’s modification petition was reinstated, and the petition was dismissed.

Analysis

Precedents and Authorities Cited

The court’s analysis interwove statutory provisions and appellate precedents to bridge a textual gap in Family Court Act § 439(e):

• Family Ct Act § 439(e): Sets the objections-and-rebuttal mechanism to challenge a Support Magistrate’s order. It requires the objecting party to serve a copy upon the opposing party, who then has 13 days to serve and file a written rebuttal. The statute is silent on whether service on counsel suffices or is required when a party is represented.
• Family Ct Act § 165(a): Where Family Court Act procedure is silent, the CPLR applies “to the extent appropriate.” This is the conduit through which CPLR 2103 governs service in the objections process.
• CPLR 2103(b): Provides that papers “to be served upon a party in a pending action shall be served upon the party’s attorney” when the party is represented. This is the core rule the Third Department enforces here.
• Matter of Etuk v Etuk, 300 A.D.2d 483 (2d Dept 2002) and Matter of Perez v Villamil, 19 A.D.3d 501 (2d Dept 2005): Second Department precedents stating that when a party is represented, service must be on counsel, not the party. Perez also recognizes that failure to serve counsel can be treated as a curable “irregularity” only where counsel actually received the objections and no prejudice ensued.
• Third Department consistency: Matter of McDonald v McDonald, 112 A.D.3d 1105 (3d Dept 2013) and Matter of Nemcek v Connors, 92 A.D.3d 1117 (3d Dept 2012) reflect the Third Department’s own alignment with the service-on-counsel rule in family proceedings governed by § 165(a) and the CPLR.
• Appealability line: Matter of Andzel-Graziano v Graziano, 193 A.D.3d 1282 (3d Dept 2021); Matter of Cortland County Dept. of Social Servs. v Martin, 182 A.D.3d 759 (3d Dept 2020); and Matter of Treistman v Cayley, 155 A.D.3d 1343 (3d Dept 2017) establish that nonfinal, nondispositional Family Court orders are not appealable as of right, and issues embedded in them can be raised in an appeal from the ultimate final order.
• 22 NYCRR 1250.10(a): Provides that an unperfected appeal is deemed dismissed after six months; the Third Department explains that dismissal of the father’s earlier, unperfected appeal from a nonfinal order did not waive his right to raise the same issues in a later appeal from the final order.
• Matter of Brescia v Fitts, 56 N.Y.2d 132 (1982): Cited in the procedural narrative to frame the substantive standard applied when parties have opted out of statutory modification triggers—i.e., the need to show an unanticipated and unreasonable change in circumstances resulting in a concomitant need.

Legal Reasoning

1. Gap-filling via § 165(a): The court begins with § 439(e)’s service requirement but notes its silence on service on counsel. Under § 165(a), the CPLR’s service rules fill that gap. CPLR 2103 is unambiguous: where a party is represented, papers must be served on the attorney.
2. Uniform rule across Departments: Citing both Second and Third Department cases, the court confirms the uniform requirement that service on counsel is mandatory when a party is represented. The corollary—service on the party instead of counsel—is noncompliant.
3. Prejudice matters: The court acknowledges that some service missteps can be disregarded as “mere irregularities” where counsel actually receives the paper and there is no prejudice (Perez). But here, counsel never received the objections; he learned of them only after the Family Court granted them. The father thus lost his statutory 13-day window to rebut—prejudice on its face.
4. Remedy: Because the failure to serve counsel deprived the father of a meaningful opportunity to be heard on the objections, the court declares Family Court’s February 10, 2023 order granting the objections and “all subsequent orders” void. That terminates the post-objections proceedings, including the remand hearing that had increased support, and reinstates the Support Magistrate’s December 30, 2022 order dismissing the mother’s petition.
5. Nonfinal appeal clarification: The panel also addresses procedural posture. The mother argued that the father’s earlier failure to perfect an appeal from the February 2023 order waived his objections. The court disagrees: the February 2023 order was nonfinal (it remanded for further proceedings), thus not appealable; the father’s rights to raise those issues persisted and were properly asserted in the appeal from the final dispositional order.

Impact and Practical Consequences

Although the service-on-counsel principle is not novel, the Third Department’s language and remedy here give it sharp practical teeth in Family Court proceedings:

• Strict adherence to service on counsel in § 439(e) objections: Objecting parties—whether represented or self-represented—must serve counsel of record, not merely the opposing party, where the opposing party is represented. Failure to do so can void downstream orders if prejudice results.
• Prejudice threshold clarified: The court’s prejudice analysis is pragmatic: the absence of actual receipt by counsel and the defeat of the 13-day rebuttal right under § 439(e) is enough. Parties do not need to prove hypothetical merits of the rebuttal—lost process is itself the harm.
• Family Court safeguards: Family Court judges should vigilantly confirm proper service on counsel before deciding objections. Where proof of service on counsel is missing or disputed, the safer course is to withhold decision on objections and direct compliance or conduct a limited hearing on service.
• Pro se litigants and form pitfalls: Self-represented parties must still comply with CPLR 2103 via § 165(a). Mailing objections solely to the other parent is insufficient if that parent has counsel. Courts may not indulge defects that deprive the represented party of the statutory rebuttal opportunity.
• Upward modification practice: Because the appellate court resolved the case entirely on service grounds, it did not reach the merits of the parties’ 2011 opt-out from Family Ct Act § 451’s “three-year/15%” triggers. Practitioners should not read this decision as eroding opt-out provisions; if anything, the reinstated Support Magistrate order reflected continued vitality of such opt-outs, with the modification standard reverting to the Brescia framework when statutory triggers are unavailable.
• Appellate practice reminder: Nonfinal Family Court orders (e.g., orders granting objections and remanding) are not independently appealable as of right. Failing to perfect a premature appeal does not forfeit the ability to challenge those issues in an appeal from the final order.

Complex Concepts Simplified

• Support Magistrate vs. Family Court Judge:
  • Support Magistrates conduct hearings and issue orders in child support matters.
  • A party aggrieved by a Support Magistrate’s order can file written “objections” with a Family Court judge, who reviews and may affirm, reverse, or remand.
• Objections under Family Ct Act § 439(e):
  • The losing party may file objections to a Support Magistrate’s order.
  • The objector must serve a copy on the opposing party (via § 165(a), that means on counsel if the opposing party is represented).
  • The other side gets 13 days after service to file a rebuttal.
  • Proper, provable service is essential; without it, any ruling on objections can be undone.
• Service on counsel via CPLR 2103:
  • In any pending case, papers must be served on the attorney for a represented party.
  • Serving the represented party directly is not sufficient and risks nullifying subsequent orders if it causes harm.
• “Irregularity” vs. “Void”:
  • Some service mistakes are “irregularities” that a court may overlook—typically when the attorney actually receives the paper and there is no prejudice (e.g., counsel files a rebuttal anyway).
  • When service errors deprive a party of a statutory right to respond—like the 13-day rebuttal window—courts can deem the orders “void” and restore the status quo ante.
• Opt-out of statutory modification triggers (Family Ct Act § 451):
  • Parties may stipulate to opt out of the default rule that child support can be modified after three years or a 15% change in income; the current opt-out provision is codified at Family Ct Act § 451(3)(b)(i), (ii).
  • When a valid opt-out is in place, an upward modification typically requires showing an unanticipated and unreasonable change in circumstances with a concomitant need (Brescia v Fitts).
• Final vs. nonfinal orders:
  • Nonfinal (interlocutory) orders—like an order granting objections and remanding for more proceedings—are generally not appealable as of right.
  • Issues embedded in such orders are preserved and can be raised in an appeal from the eventual final order.

Contextual Notes on the Underlying Dispute

The parents’ 2011 stipulation, incorporated into a support order, included an opt-out from the later statutory modification triggers permitting modification after three years or a 15% income change. In 2022, the mother sought an upward modification, citing the child’s increased costs, the passage of three years since the last order, and the father’s alleged payment of less than 17% of his income. The Support Magistrate honored the opt-out, struck the statutory “three-year/15%” bases, held a hearing under the Brescia standard, and dismissed the petition for failure to prove an unanticipated, unreasonable change in circumstances. Family Court later granted the mother’s objections (without the father’s counsel having been served), refused to give effect to the opt-out, and increased support on remand by relying on the elapsed time. The Third Department’s reversal on the service defect reinstates the Support Magistrate’s dismissal, leaving the opt-out issue unresolved at the appellate level in this case.

Practical Guidance

• When filing objections under § 439(e):
  • Identify counsel of record for the opposing party and serve objections on that attorney, not just the party.
  • File detailed proof of service reflecting service on counsel (method, date, address) and retain mailing receipts if served by mail.
  • Remember that the opposing party has 13 days from service to rebut; do not seek a ruling before that window expires.
• If you represent the party who did not receive proper service:
  • Upon learning of a granted objection you never received, promptly move to vacate, citing § 165(a), CPLR 2103, and the prejudice in losing the rebuttal period.
  • Ask the court to restore the Support Magistrate’s order or, at minimum, reset the objections/rebuttal schedule, depending on the posture and prejudice.
• For Family Court:
  • Before ruling on objections, verify proof of service on counsel where the opposing party is represented.
  • If service is defective, direct re-service or, if orders have already issued, consider vacatur to protect due process and avoid reversible error.

Conclusion

Andersen v. Bosworth is a precise but consequential procedural decision. The Third Department clarifies that objections to a Support Magistrate’s order must be served on the attorney of a represented party, via CPLR 2103 imported by Family Court Act § 165(a), and that a failure to do so—where it strips the party of the § 439(e) rebuttal right—will void the Family Court’s subsequent orders. The decision also reinforces the familiar appellate path in Family Court practice: nonfinal orders are not appealable in isolation, and issues may be preserved for review in an appeal from the final order.

Substantively, the case leaves intact, but unresolved at the appellate level here, the enforceability of the parties’ opt-out from the “three-year/15%” modification triggers in § 451; the Support Magistrate’s honor of that opt-out and reliance on Brescia’s stricter change-in-circumstances framework stands by virtue of the reinstatement. Procedurally, however, the lesson is unmistakable: proper service on counsel is not a technicality but a due process cornerstone. Overlooking it can unravel an entire course of proceedings.