Opinion
02-09-2024
In the Matter of Michael PROVOSTLUTZ, Petitioner-Appellant, v. Jacqueline SCHMID, Respondent-Respondent.
TULLY RINCKEY, PLLC, NEW YORK CITY (MICHAEL E. LIPTROT OF COUNSEL), FOR PETITIONER-APPELLANT. D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT-RESPONDENT. SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
Appeal from an order of the Family Court, Onondaga County (Salvatore A. Pavone, R.), entered December 14, 2022, in a proceeding pursuant to Family Court Act article 6. The order, among other things, granted petitioner virtual parenting time with the subject children on a weekly basis.
TULLY RINCKEY, PLLC, NEW YORK CITY (MICHAEL E. LIPTROT OF COUNSEL), FOR PETITIONER-APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENT-RESPONDENT.
SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., MONTOUR, OGDEN, DELCONTE, AND KEANE, 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 6, petitioner father appeals from an order that, inter alia, awarded him weekly virtual visitation with the subject children. The record establishes, however, that the father, through his guardian ad litem, stipulated on the record in open court to the terms of the order, and it is well settled that "no appeal lies from an order entered upon the parties’ consent" (Matter of Holiday v. Holiday, 214 A.D.3d 1456, 1457, 184 N.Y.S.3d 665 [4th Dept. 2023] [internal quotation marks omitted]). Although the father contends that his guardian ad litem did not have authority to enter into the stipulation of settlement on his behalf, we note that a party " ‘cannot be relieved from a stipulation … upon an appeal from the order entered pursuant to the stipulation’ … The proper remedy is a motion to vacate … the order or a motion to set aside the stipulation" (Matter of Michelle F., 280 A.D.2d 969, 969, 720 N.Y.S.2d 878 [4th Dept. 2001]; see also Holiday, 214 A.D.3d at 1457, 184 N.Y.S.3d 665).
The father’s remaining contentions are not properly before us.