Opinion
1086 CAF 19-00841
02-05-2021
In the Matter of Kelly A. STURNICK, Petitioner-Respondent, v. Terrance L. HOBBS, Respondent-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR RESPONDENT-APPELLANT. SARAH L. FIFIELD, FAIRPORT, ATTORNEY FOR THE CHILD.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR RESPONDENT-APPELLANT.
SARAH L. FIFIELD, FAIRPORT, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the determination that petitioner "should return to this community at least 3 times per year for a week each time," and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following memorandum: Respondent father appeals from an order that, inter alia, granted petitioner mother's petition seeking sole custody and primary physical residence of the subject child and her second petition seeking permission for the child to relocate with her to North Carolina.
The father waived his challenge to the authority of the Court Attorney Referee to hear and determine the petitions before him (see Matter of Wolf v. Assessors of Town of Hanover , 308 N.Y. 416, 418-420, 126 N.E.2d 537 [1955] ; see also Matter of Cushman v. Cushman , 151 A.D.2d 1021, 1021, 542 N.Y.S.2d 85 [4th Dept. 1989] ). "[W]here a referee [is] ... appointed without demur and evidence [is] introduced without objection that the referee lacked authority to try the issue, [t]he respondent cannot put in his evidence and take his chance that he will win and, upon his failure, claim that the reference was illegal" ( Wolf , 308 N.Y. at 420, 126 N.E.2d 537 [internal quotation marks omitted]). Here, inasmuch as neither the father nor his attorney voiced any objection to having the Referee hear and determine the petitions and each signed the written stipulation indicating their agreement to permit the Referee to hear and determine the petitions, the father's challenge is waived (see id. ). We reject the father's further contention that his consent to the Referee's determination is invalid on the ground that he signed the stipulation before being advised of his right to counsel (see Matter of Phelps v. Hunter , 101 A.D.3d 1689, 1689-1690, 957 N.Y.S.2d 526 [4th Dept. 2012], lv denied 20 N.Y.3d 862, 2013 WL 1235521 [2013] ; cf. Matter of Gale v. Gale , 87 A.D.3d 1011, 1012, 929 N.Y.S.2d 495 [2d Dept. 2011] ; Matter of Osmundson v. Held-Cummings , 306 A.D.2d 950, 950-951, 761 N.Y.S.2d 923 [4th Dept. 2003] ).
The father also contends that the provisions concerning his supervised visitation are inadequate. Those provisions are expressly set forth in the decision but not the order. Where there is a discrepancy between the order and the decision, the decision controls, and we therefore deem the visitation provisions included in the order (see Matter of Lomanto v. Schneider , 78 A.D.3d 1536, 1536, 911 N.Y.S.2d 531 [4th Dept. 2010] ; Matter of Edward V. , 204 A.D.2d 1060, 1061, 614 N.Y.S.2d 348 [4th Dept. 1994] ). We agree with the father, however, that the supervised visitation provisions are inadequate. The Referee determined that the mother "should return to this community at least 3 times per year for a week each time. Those trips could be Fall, Spring and Summer of each year. That would allow [the] Father contact roughly every 4 months." The Referee failed to address details such as whether visitation with the father was for the entire week or, if not, the number and duration of visits during each week; who would constitute an appropriate supervisor for the visitation; whether the father could have overnight visitation with the child in the presence of a supervisor; and how much notice the mother would be required to give the father before she returned to the community. We therefore modify the order, as conformed to the decision, by vacating the determination that the mother "should return to this community at least 3 times per year for a week each time," and we remit the matter to Family Court to fashion an appropriate schedule for supervised visitation in accordance with the best interests of the child (see Matter of Edmonds v. Lewis , 175 A.D.3d 1040, 1043, 108 N.Y.S.3d 611 [4th Dept. 2019], lv denied 34 N.Y.3d 909, 2020 WL 728588 [2020] ; Matter of Lakeya P. v. Ajja M. , 169 A.D.3d 1409, 1411, 92 N.Y.S.3d 787 [4th Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2461559 [2019] ).