Opinion
03-24-2017
Ryan M. FORRESTEL, Plaintiff–Respondent, v. Marguerita M.C. JONKMAN, Defendant–Appellant. (Appeal No. 1.).
Marguerita M.C. Jonkman, Defendant–Appellant Pro Se. John P. Pieri, Buffalo, for Plaintiff–Respondent.
Marguerita M.C. Jonkman, Defendant–Appellant Pro Se.
John P. Pieri, Buffalo, for Plaintiff–Respondent.
PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM:
In this postdivorce proceeding, defendant former wife appeals from three orders. By the order in appeal No. 1, Supreme Court denied defendant's petition seeking to modify an existing order of joint custody and visitation that we previously affirmed (Forrestel v. Forrestel, 125 A.D.3d 1299, 3 N.Y.S.3d 483, lv. denied 25 N.Y.3d 904, 2015 WL 2026161 ). By the order in appeal No. 2, the court reserved decision on plaintiff former husband's motion seeking payments allegedly owed to him by defendant under the property settlement agreement incorporated in the parties' judgment of divorce, and denied defendant's cross motion seeking, inter alia, similar relief under that agreement. By the order in appeal No. 3, the court denied defendant's motion seeking its recusal.
We conclude in appeal No. 1 that the court properly denied defendant's petition because she failed to "make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody order should be modified" (Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1417–1418, 770 N.Y.S.2d 248 [internal quotation marks omitted]; see Matter of Strachan v. Gilliam [appeal No. 1], 129 A.D.3d 1679, 1679, 12 N.Y.S.3d 424, lv. dismissed 26 N.Y.3d 994, 19 N.Y.S.3d 215, 41 N.E.3d 73 ; Matter of Sierak v. Staring, 124 A.D.3d 1397, 1398, 1 N.Y.S.3d 696 ; Matter of Chrysler v. Fabian, 66 A.D.3d 1446, 1447, 885 N.Y.S.2d 861, lv. denied 13 N.Y.3d 715, 895 N.Y.S.2d 314, 922 N.E.2d 903 ).
"An order reserving decision is not appealable" ( Matter of Trader v. State of New York, 277 A.D.2d 978, 978, 716 N.Y.S.2d 626 ; see Schlau v. City of Buffalo, 125 A.D.3d 1546, 1548, 4 N.Y.S.3d 450 ), and we therefore dismiss appeal No. 2 to the extent that it concerns that part of the order reserving decision on plaintiff's motion. To the extent that defendant challenges the denial of her cross motion, we affirm the order. The parties' property settlement agreement is not in the record on appeal, and we are thus "unable to review the propriety of" the court's denial of defendant's claim for payments allegedly owed to her by plaintiff under that agreement (Matter of Wood v. Marshall, 296 A.D.2d 859, 860, 744 N.Y.S.2d 922, lv. dismissed in part and denied in part 98 N.Y.2d 755, 751 N.Y.S.2d 843, 781 N.E.2d 908 ).
Finally, we conclude in appeal No. 3 that the court properly denied defendant's recusal motion. In denying the petition in appeal No. 1, which alleged, inter alia, that plaintiff had unreasonably interfered with defendant's telephone access to the children while they were on vacation with him in Ireland, the court made several references to its own experience of difficulty with communications technology in Ireland. Nonetheless, the record as a whole establishes that the court denied the petition on the ground that it was facially insufficient, rather than by using its personal experience to resolve "disputed evidentiary facts" in plaintiff's favor (22 NYCRR 100.3 [E] [1] [a][ii] ). We therefore conclude that the determination in appeal No. 1 was not affected by the comments at issue (see Matter of Davis v. Davis, 197 A.D.2d 622, 623, 602 N.Y.S.2d 672 ; see generally Matter of Kasprowicz v. Osgood, 101 A.D.3d 1760, 1762, 956 N.Y.S.2d 786, lv. denied 20 N.Y.3d 863, 2013 WL 1235503 ), and that the court "was within its discretion in refusing to recuse itself" (Hass & Gottlieb v. Sook Hi Lee, 55 A.D.3d 433, 434, 866 N.Y.S.2d 72 ; see Matter of Daniel B., 134 A.D.3d 1103, 1104, 22 N.Y.S.3d 553 ; Matter of Ryan v. Ryan, 110 A.D.3d 1176, 1181, 973 N.Y.S.2d 377 ; see generally Matter of Roseman v.
Sierant, 142 A.D.3d 1323, 1325, 38 N.Y.S.3d 295 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.