Opinion
261 CAF 20-00606
03-26-2021
In the Matter of Joseph Michael MILANO, Petitioner-Appellant, v. Teresa A. ANDERSON, Respondent-Respondent.
LOCKHART LAW OFFICE, P.C., NORTH SYRACUSE (BETH A. LOCKHART OF COUNSEL), FOR PETITIONER-APPELLANT. CDH LAW, PLLC, SYRACUSE (J. DAVID HAMMOND OF COUNSEL), FOR RESPONDENT-RESPONDENT.
LOCKHART LAW OFFICE, P.C., NORTH SYRACUSE (BETH A. LOCKHART OF COUNSEL), FOR PETITIONER-APPELLANT.
CDH LAW, PLLC, SYRACUSE (J. DAVID HAMMOND OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 4, petitioner father appeals from an order denying his written objections to the order of the Support Magistrate, which dismissed his petition seeking to terminate his child support obligation on the ground that the subject child was emancipated due to her participation in the Air Force Reserve Officer Training Corps. We dismiss the appeal as moot.
"Courts are generally prohibited from issuing advisory opinions or ruling on hypothetical inquiries" ( Coleman v. Daines , 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [2012] ; see Saratoga County Chamber of Commerce, Inc. v. Pataki , 100 N.Y.2d 801, 810-811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ). "Thus, an appeal is moot unless an adjudication of the merits will result in immediate and practical consequences to the parties" ( Coleman , 19 N.Y.3d at 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 ; see City of New York v. Maul , 14 N.Y.3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010] ). "An exception to the mootness doctrine may apply, however, where the issue to be decided, though moot, (1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts" ( Coleman , 19 N.Y.3d at 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 ; see Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ).
Here, during the pendency of this appeal, the child turned 21 years old and, therefore, the father's obligation to pay child support ceased (see Family Ct Act § 413 [1] [a] ; Matter of Frederick-Kane v. Potter , 187 A.D.3d 1436, 1436, 134 N.Y.S.3d 552 [3d Dept. 2020] ). Moreover, even if the father succeeded on this appeal, he "would have no avenue to regain any sums he might have overpaid in child support" ( Frederick-Kane , 187 A.D.3d at 1436, 134 N.Y.S.3d 552 ). "[T]here is a ‘strong public policy against restitution or recoupment of support overpayments’ " ( Johnson v. Chapin , 12 N.Y.3d 461, 466, 881 N.Y.S.2d 373, 909 N.E.2d 66 [2009], rearg denied 13 N.Y.3d 88, 885 N.Y.S.2d 8, 913 N.E.2d 394 [2009] ), and we conclude that there is "no basis to depart from that policy here" ( Frederick-Kane , 187 A.D.3d at 1437, 134 N.Y.S.3d 552 ). Under the circumstances of this case, " ‘the rights of the parties will [not] be directly affected by the determination of [this] appeal’ " ( id. , quoting Hearst Corp. , 50 N.Y.2d at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). Contrary to the father's contention, we conclude that the exception to the mootness doctrine does not apply (see generally Saratoga County Chamber of Commerce , 100 N.Y.2d at 811-812, 766 N.Y.S.2d 654, 798 N.E.2d 1047 ; Hearst Corp. , 50 N.Y.2d at 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876 ).