Opinion
02-10-2017
In the Matter of Sandra L. COUGHLIN, Petitioner–Appellant, v. Kelly J. COUGHLIN, Respondent–Respondent. (Appeal No. 1.).
Hoppe & Associates, Inc., Buffalo (Bernadette M. Hoppe of Counsel), for petitioner-appellant. Deborah J. Scinta, Orchard Park, for respondent-respondent. David E. Blackley, Attorney for the Child, Lockport.
Hoppe & Associates, Inc., Buffalo (Bernadette M. Hoppe of Counsel), for petitioner-appellant.
Deborah J. Scinta, Orchard Park, for respondent-respondent.
David E. Blackley, Attorney for the Child, Lockport.
MEMORANDUM:
Petitioner mother appeals from three orders of Family Court that, respectively, dismissed a petition seeking modification of the custody provisions in the judgment of divorce (appeal No. 2), dismissed a petition alleging a violation of an unspecified order (appeal No. 1), and dismissed a petition alleging a violation of an order that is not contained in the record on appeal (appeal No. 3). As limited by her brief, the mother contends that Family Court erred in dismissing each of those petitions with prejudice. We agree.
Respondent father correctly concedes that the orders in appeal Nos. 1 and 3 conflict with Family Court's decision, which expressly provides that the violation petitions were dismissed without prejudice. Because the decision controls where, as here, it conflicts with the order, we modify the orders in appeal Nos. 1 and 3 to conform to the decision (see Matter of Esposito v. Magill, 140 A.D.3d 1772, 1773, 32 N.Y.S.3d 802, lv. denied 28 N.Y.3d 904, 2016 WL 6209084 ).
With respect to appeal No. 2, the court determined that the petition was facially insufficient to allege a change of circumstances warranting a change of custody. Thus, because petitioner has not had a full and fair opportunity to litigate her allegations that the custody provisions in the judgment of divorce should be modified, the court erred in dismissing the petition with prejudice (cf. Stiles v. Graves, 143 A.D.3d 1215, 1216–1217, 40 N.Y.S.3d 620 ; see generally Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 13, 862 N.Y.S.2d 316, 892 N.E.2d 380 ). We therefore modify the order in appeal No. 2 accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by providing that the petition is dismissed without prejudice, and as modified the order is affirmed without costs.
CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, and SCUDDER, JJ., concur.