Opinion
November 7, 1994
Appeal from the Family Court, Suffolk County (Auperin, J.).
Ordered that the order entered November 9, 1992, is affirmed, and it is further
Ordered that the appeal from the order entered December 8, 1992, is dismissed, and it is further,
Ordered that the respondent is awarded one bill of costs.
While courts will enforce a contractual agreement between spouses concerning the religious upbringing of a child (see, Gluckstern v. Gluckstern, 4 N.Y.2d 521; Jabri v. Jabri, 193 A.D.2d 782; Stevenot v. Stevenot, 133 A.D.2d 820; Perlstein v Perlstein, 76 A.D.2d 49, 51, 53; Garvar v. Faltings, 54 A.D.2d 971), in this case, the Family Court properly dismissed the appellant's cross petition seeking a change of physical custody due to the absence of any evidence that the petitioner violated the provision of a stipulation which obligated her to "raise the child pursuant to the Muslim faith". In addition, the Family Court properly considered the testimony of the witnesses and the factors necessary to determine what was in the best interests of the child (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 172-173; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 91; Gray v Chambers, 206 A.D.2d 619; Matter of Lamb v. Lamb, 199 A.D.2d 972; Johns v. Johns, 156 A.D.2d 777, 778). We find no basis for disturbing its determination (see, Eschbach v. Eschbach, supra, at 173-174).
Finally, the appeal from the order entered December 8, 1992, which refused to entertain the appellant's motion to vacate the court's November 9, 1992, order on the basis of newly discovered evidence, should be dismissed as the order did not constitute a determination on the merits and the motion was made without notice to all parties (see, CPLR 5701 [a] [2] [iv]; [3]). While the appellant subsequently moved for the same relief on notice to all parties, he failed to appeal from the order which considered the merits of his motion which was entered by the Family Court, Suffolk County (Kent, J.) on April 16, 1993. Even if the issue raised in the motion were properly before us, we would find that it has no merit. Ritter, J.P., Copertino, Friedmann and Florio, JJ., concur.