| Koziol v Koziol |
| 2009 NY Slip Op 02194 [60 AD3d 1433] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| Leon R. Koziol, Appellant, v Kelly Hawse Koziol, Respondent.(Appeal No. 1.) |
—[*1] Sugarman Law Firm, LLP, Syracuse (Rebecca A. Crance of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Oneida County (John W. Grow, J.), enteredFebruary 12, 2007 in a divorce action. The order, insofar as appealed from, denied the motion ofplaintiff for custody and suspension of his support obligations pending determination of theaction.
It is hereby ordered that said appeal is unanimously dismissed without costs.
Memorandum: As limited by his brief, in appeal No. 1 plaintiff appeals from those parts of apendente lite order concerning his custody and support obligations. Appeal No. 1 must bedismissed because, inter alia, the order in that appeal was rendered moot by the subsequentjudgment of divorce issued in appeal No. 2 (see Kelly v Kelly, 19 AD3d 1104,1105-1106 [2005], appeal dismissed 5 NY3d 847 [2005], reconsideration denied andlv dismissed in part and denied in part 6 NY3d 803 [2006]). Appeal No. 2 also must bedismissed because plaintiff's contentions with respect to the judgment therein concern issues thatwere resolved by the parties' 2004 "Stipulation of Settlement" and 2005 "ModificationAgreement" that were incorporated but not merged in the judgment of divorce. Thus, plaintiff isnot aggrieved by the judgment in appeal No. 2 (see CPLR 5511; Gaudette vGaudette, 234 AD2d 619, 621 [1996], appeal dismissed 89 NY2d 1023 [1997],rearg denied 90 NY2d 845 [1997], rearg dismissed 90 NY2d 937 [1997];Hopkins v Hopkins, 97 AD2d 457 [1983]). "The proper remedy is a motion to set asideth[e] stipulation [and agreement]" (Hopkins, 97 AD2d at 458).
In appeal No. 3, plaintiff contends that, because of the "sensitive family matters" involved inthis action, Supreme Court erred in refusing to amend the caption of the pleadings in order toprotect the anonymity of the parties and their children. We reject that contention. "In mattersinvolving child custody issues such relief should be granted only in the rare case, where, inconsidering the best interests of the children, there is a finding that their health and welfarewould be protected, not their 'privacy' " (Anonymous v Anonymous, 27 AD3d 356, 361[2006]), and plaintiff has failed to establish that this is one of those rare cases. We conclude withrespect to appeal No. 4 that the court properly denied plaintiff's post-divorce cross motionseeking "custody and/or parenting time." The judgment of divorce referred all future mattersconcerning custody and visitation to Family Court and, indeed, plaintiff commenced aproceeding seeking custody in Family Court (see generally Family Ct Act § 651[a]).[*2]
Finally, contrary to plaintiff's contention, the court wasnot divested of jurisdiction in this divorce action based on the fact that the Attorney General wasnot placed on notice of plaintiff's constitutional challenges to certain sections of the DomesticRelations Law. Pursuant to CPLR 1012 (b) (3), the court shall not consider the constitutionalityof any state statute "unless proof of service of the notice required by [CPLR 1012] is filed withsuch court." Thus, it is the burden of the party challenging the state statute to place the AttorneyGeneral on notice of the constitutional challenge, and there is nothing in the record establishingthat plaintiff provided such notice to the Attorney General or filed proof of service with thecourt. The court therefore properly did not address the constitutionality of the statutes challengedby plaintiff (see Gina P. v Stephen S., 33 AD3d 412, 415-416 [2006]).Present—Scudder, P.J., Smith, Centra and Fahey, JJ.