Opinion
2012-11-16
In the Matter of Jason R. GUCK, Petitioner–Respondent, v. Malinda A. PRINZING and Carl E. Prinzing, Respondents–Appellants. In the Matter of Paul G. Guck, Petitioner–Respondent, v. Malinda A. Prinzing and Carl E. Prinzing, Respondents–Appellants. (Appeal No. 2.)
Tyson Blue, Macedon, for Respondents–Appellants. Elizabeth A. Sammons, Attorney for the Children, Williamson, for David P. and Alyssa P.
Tyson Blue, Macedon, for Respondents–Appellants. Elizabeth A. Sammons, Attorney for the Children, Williamson, for David P. and Alyssa P.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
In appeal No. 1, respondent parents appeal from an order that awarded visitation of the parents' two children to the mother's teenage son and the mother's parents, and in appeal No. 2 they appeal from an order that sentenced the mother to 60 days in jail for civil contempt based upon a prior finding that she willfully failed to obey the visitation order. We note at the outset that, because the father is not aggrieved by the contempt order against the mother, his appeal from the order in appeal No. 2 is dismissed ( seeCPLR 5511). The parents' sole contention in appeal No. 1 and the mother's sole contention in appeal No. 2 is that Domestic Relations Law § 72, which allows grandparents to commence a special proceeding seeking visitation with infant grandchildren, is unconstitutional as applied to this case because the subject children's family is intact and properly functioning. Because the parents did not raise that contention in Family Court, it is unpreserved for our review ( see Melahn v. Hearn, 60 N.Y.2d 944, 945, 471 N.Y.S.2d 47, 459 N.E.2d 156;Matter of State of New York v. Campany, 77 A.D.3d 92, 101, 905 N.Y.S.2d 419,lv. denied15 N.Y.3d 713, 2010 WL 4183541). In fact, the parents initially consented to an order providing for grandparent visitation, and they acknowledged in open court that it was in the children's best interests to spend time with their grandparents, with whom the children had previously resided. By consenting to the visitation order, the parents waived any challenge to the applicability of Domestic Relations Law § 72.
It is hereby ORDERED that said appeal by respondent Carl E. Prinzing is unanimously dismissed and the order is otherwise affirmed without costs.