Opinion
2012-07-5
In the Matter of Amanda WHITING, Respondent, v. Anthony WARD, Appellant. (And Three Other Related Proceedings.)
John D. Eggleston, Ballston Spa, for appellant. Alexandra G. Verrigni, Rexford, for respondent.
John D. Eggleston, Ballston Spa, for appellant. Alexandra G. Verrigni, Rexford, for respondent.
Daryl S. Cutler, Malta, attorney for the child.
Before: PETERS, P.J., LAHTINEN, SPAIN, MALONE JR. and GARRY, JJ.
PETERS, P.J.
Appeal from an order of the Family Court of Saratoga County (Jensen, J.), entered May 16, 2011, which, sua sponte, dismissed the parties' applications, in four proceedings pursuant to Family Ct. Act article 6, to modify and/or enforce prior orders of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a daughter (born in 2006). Pursuant to a March 2010 order entered upon consent, the parties continued to share joint legal custody of the child, with the mother having primary physical custody and the father receiving liberal visitation. In August 2010, again upon stipulation of the parties, an order was entered which mirrored the terms of the March 2010 order with the exception of the addition of a provision regarding the drop-off location for the exchange of the child. The father appealed from this order.
While the appeal from the August 2010 order was pending, the mother commenced a proceeding seeking modification of the visitation schedule set forth in the order, and the father commenced three proceedings seeking enforcement of its terms as well as those contained in a 2009 order. At the parties' initial appearance, Family Court, sua sponte, dismissed all of the petitions based solely on the father's then-pending appeal, stating that it was the court's “position” not to entertain new petitions until an appeal has been determined by this Court because to do so would “usurp the authority of the Appellate Division.” An order of dismissal was entered by the court in May 2011. The father appeals.
Following Family Court's dismissal of his enforcement petitions, the father withdrew his appeal from the August 2010 order.
The mother's failure to take an appeal from Family Court's order precludes us from granting her any affirmative relief ( seeFamily Ct. Act § 1113; Hecht v. City of New York, 60 N.Y.2d 57, 60–61, 467 N.Y.S.2d 187, 454 N.E.2d 527 [1983] ).
As a preliminary matter, the attorney for the child has advised us in his brief that several petitions have been filed while this appeal was pending and that another order has been entered addressing issues of custody and visitation between the parties. However, that order has not been provided to this Court and we are unaware whether it left intact or superseded the provisions of the orders that the father sought to enforce. Accordingly, we cannot conclude that this appeal has been rendered moot ( see Matter of Hissam v. Hissam, 84 A.D.3d 1513, 1514 n., 923 N.Y.S.2d 757 [2011],lv. dismissed and denied17 N.Y.3d 855, 930 N.Y.S.2d 549, 954 N.E.2d 1175 [2011];see also Hughes v. Gallup–Hughes, 90 A.D.3d 1087, 1088, 935 N.Y.S.2d 149 [2011] ).
Family Court's dismissal of the father's enforcement petitions was error. Family Ct. Act § 1114(a) specifically provides that the filing of a notice of appeal from a Family Court order does not give rise to an automatic stay. As no party moved this Court for a stay of the August 2010 order pending resolution of the appeal, it remained binding on and enforceable by the parties during the prosecution of the father's appeal ( seeFamily Ct. Act § 1114; Matter of John H., 60 A.D.3d 1168, 1169, 876 N.Y.S.2d 169 [2009];Matter of John H., 56 A.D.3d 1024, 1026, 868 N.Y.S.2d 790 [2008] ). The fact that the outcome of the appeal may have nullified or otherwise altered portions of the order sought to be enforced or modified is irrelevant. Moreover, if it is shown that subsequent proceedingsresult in an order that supersedes or replaces provisions of an order sought to be enforced or challenged on appeal, this Court will dismiss the appeal as moot ( see e.g. Matter of Yishak v. Ashera, 68 A.D.3d 1282, 1284, 890 N.Y.S.2d 193 [2009];Matter of Edward S. v. Kelly S., 18 A.D.3d 976, 977, 795 N.Y.S.2d 364 [2005];Matter of Carnevale–Martin v. Stone, 241 A.D.2d 779, 780, 660 N.Y.S.2d 1020 [1997] ). In short, Family Court's practice of declining to entertain Family Ct. Act article 6 petitions while an appeal is pending from an order entered pursuant to that article is without legal foundation.
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as dismissed respondent's enforcement petitions; matter remitted to the Family Court of Saratoga County for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.