Opinion
920 CAF 21-00272
02-03-2023
In the Matter of Ryan FELTZ, Petitioner-Appellant, v. Amy YANUCIL, Respondent-Respondent.
DAVID J. PAJAK, ALDEN, FOR PETITIONER-APPELLANT. CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-RESPONDENT. JENNIFER M. LORENZ, ORCHARD PARK, ATTORNEY FOR THE CHILDREN.
DAVID J. PAJAK, ALDEN, FOR PETITIONER-APPELLANT.
CAITLIN M. CONNELLY, BUFFALO, FOR RESPONDENT-RESPONDENT.
JENNIFER M. LORENZ, ORCHARD PARK, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father and respondent mother are the parents of two children who live with the mother in Mercer County, New Jersey. Pursuant to a prior custody order, the mother has sole legal and primary physical custody of the children. The father filed a petition seeking modification of the prior custody order and two violation petitions, and the mother moved to dismiss those petitions on, inter alia, the ground that New York is an inconvenient forum under Domestic Relations Law § 76-f. Family Court determined that New York is an inconvenient forum and therefore issued an order granting the motion to the extent of staying the instant proceedings pending the commencement of custody and visitation proceedings in Mercer County, New Jersey. Initially, we agree with the mother that the order staying the father's petitions is not appealable as of right (see Family Ct Act § 1112 [a] ; Matter of Jeremy A. v. Vianca G. , 120 A.D.3d 1147, 1147, 993 N.Y.S.2d 29 [1st Dept. 2014] ; see generally Matter of Steeno v. Szydlowski , 181 A.D.3d 1224, 1225, 120 N.Y.S.3d 668 [4th Dept. 2020] ). Although the father did not request leave to appeal, we nevertheless treat the notice of appeal as an application for leave to appeal and, in the exercise of our discretion, we grant the application (see Matter of Danielle E.P. v. Christopher N. , 208 A.D.3d 978, 978, 172 N.Y.S.3d 782 [4th Dept. 2022], lv denied 39 N.Y.3d 904, 2022 WL 17588001 [2022] ; see generally § 1112 [a] ).
We reject the father's contention that the court erred in granting the motion to the extent of staying the proceedings on the ground of inconvenient forum and in declining to exercise its jurisdiction in this matter. "In determining whether the state that has jurisdiction is an inconvenient forum, a court should consider such factors as ‘the length of time the child[ren have] resided outside th[e] state’ ( Domestic Relations Law § 76-f [2] [b] ), ‘the nature and location of the evidence required to resolve the pending litigation, including testimony of the child[ren]’ ( § 76-f [2] [f] ), and ‘the familiarity of the court of each state with the facts and issues in the pending litigation’ ( § 76-f [2] [h] )" ( Clark v. Clark , 21 A.D.3d 1326, 1327, 801 N.Y.S.2d 863 [4th Dept. 2005] ). Here, we conclude that the court, after considering all of the factors, properly exercised its discretion in determining that New Jersey was a more appropriate forum for these proceedings (see Matter of Dei v. Diew , 56 A.D.3d 1212, 1213, 868 N.Y.S.2d 439 [4th Dept. 2008] ; Clark , 21 A.D.3d at 1327-1328, 801 N.Y.S.2d 863 ).