Opinion
159 CAF 21-01326
03-17-2023
In the Matter of Toure Henderson JOHNSON, Petitioner-Appellant, v. Flor FORTY (also Known as Flor Forty Cruz and Flor Easton), and Gloria D. Henderson, Respondents-Respondents. In the Matter of Flor Forty (Also Known as Flor Forty Cruz and Flor Easton), Petitioner-Respondent, v. Toure Henderson Johnson, Respondent-Appellant, and Gloria D. Henderson, Respondent-Respondent. In the Matter of Flor Forty (Also Known as Flor Forty Cruz and Flor Easton), Petitioner-Respondent, v. Toure Henderson Johnson, Respondent-Appellant. In the Matter of Toure Henderson Johnson, Petitioner-Appellant, v. Flor Forty (also Known as Flor Forty Cruz and Flor Easton), Respondent-Respondent.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT. FITZSIMMONS NUNN & PLUKAS, LLP, ROCHESTER (JOSEPH PLUKAS OF COUNSEL), FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT. MAUREEN N. POLEN, ROCHESTER, ATTORNEY FOR THE CHILD.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.
FITZSIMMONS NUNN & PLUKAS, LLP, ROCHESTER (JOSEPH PLUKAS OF COUNSEL), FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT.
MAUREEN N. POLEN, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner-respondent father appeals from an order that modified a prior order of custody and visitation by, inter alia, granting respondent-petitioner mother sole custody and primary physical residence of the subject child, with visitation to the father. We affirm for reasons stated in the "decision and order" at Family Court. We write only to address two issues. First, contrary to the mother's contention, the appeal, in which the father challenges only the court's custody determination, has not been rendered moot by a subsequent order entered upon the consent of the parties inasmuch as the mother's petition prompting the subsequent order sought to modify the visitation provisions only and the transcript of the subsequent proceeding establishes that the father "consented only to that part of [the] subsequent order concerning [the modification of] his visitation rights" ( Matter of Foster v. Bartlett , 59 A.D.3d 976, 977, 874 N.Y.S.2d 651 [4th Dept. 2009], lv denied 12 N.Y.3d 710, 2009 WL 1260176 [2009] ; see Matter of Wayman v. Ramos , 88 A.D.3d 1237, 1238-1239, 932 N.Y.S.2d 199 [3d Dept. 2011], lv dismissed 18 N.Y.3d 868, 938 N.Y.S.2d 850, 962 N.E.2d 274 [2012] ; Matter of Deuel v. Dalton , 33 A.D.3d 1158, 1159, 823 N.Y.S.2d 266 [3d Dept. 2006] ; cf. Matter of Gorski v. Phalen [Appeal No. 2] , 187 A.D.3d 1670, 1671, 133 N.Y.S.3d 714 [4th Dept. 2020] ; Matter of Wallace v. Eure , 181 A.D.3d 1329, 1329, 120 N.Y.S.3d 689 [4th Dept. 2020], lv denied 35 N.Y.3d 915, 2020 WL 6072373 [2020] ). Second, inasmuch as the father expressly sought to modify the prior order and agreed at the hearing that such prior order was the last order to determine custody, he waived his contention now raised on appeal that the court should have conducted its threshold inquiry whether there had been a sufficient change in circumstances from the date of a different order (see generally Panaro v. Panaro , 133 A.D.3d 1306, 1307, 21 N.Y.S.3d 505 [4th Dept. 2015] ).