Opinion
2012-03-16
In the Matter of Catherine MYERS, Petitioner–Respondent, v. Richard J. TRACY, Respondent–Appellant.
Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), entered June 1, 2010 in a proceeding pursuant to Family Court Act article 4. The order confirmed the determination of the Support Magistrate.Susan P. Reinecke, Clarence, for respondent–appellant. Paul R. Didio, Buffalo, for petitioner–respondent.
Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), entered June 1, 2010 in a proceeding pursuant to Family Court Act article 4. The order confirmed the determination of the Support Magistrate.Susan P. Reinecke, Clarence, for respondent–appellant. Paul R. Didio, Buffalo, for petitioner–respondent.
MEMORANDUM:
Respondent father appeals from an order confirming the Support Magistrate's determination that he willfully failed to obey a child support order and imposing a suspended sentence of 90 days in jail. The Support Magistrate's finding of a willful violation of the support order was based upon admissions made by the father in open court when the parties entered into a settlement agreement. Because the father consented to the order confirming the Support Magistrate's determination, including his recommended sentence, the appeal must be dismissed. It is well settled that “[n]o appeal lies from an order entered by consent upon the stipulation of the appealing party” ( Matter of Starz v. Tissiera, 206 A.D.2d 432, 616 N.Y.S.2d 192; see Matter of Adney v. Morton, 68 A.D.3d 1742, 890 N.Y.S.2d 864; Matter of Culton v. Culton, 2 A.D.3d 1446, 769 N.Y.S.2d 431). In any event, we note that the father's sole contention on appeal that he was denied effective assistance of counsel is based largely on matters dehors the record and thus should be raised by way of a motion to vacate the order in Family Court ( see generally Matter of Commissioner of Social Servs. of Rensselaer County [ Faresta] v. Faresta, 11 A.D.3d 750, 783 N.Y.S.2d 420).
It is hereby ORDERED that said appeal is unanimously dismissed without costs.