| Matter of Verry v Verry |
| 2009 NY Slip Op 04326 [63 AD3d 1228] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Danielle A. Verry, Appellant, v Jeffrey J. Verry,Sr., Respondent. (And Another Related Proceeding). |
—[*1] Paul R. Corradini, Elmira, for respondent. James B. Lesperance Jr., Law Guardian, Ballston Spa.
Kavanagh, J. Appeal from an order of the Family Court of Chenango County (Sullivan, J.),entered March 19, 2008, which granted respondent's application, in two proceedings pursuant toFamily Ct Act article 6, for modification of a prior order of visitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) have two children(born in 1993 and 1995). Pursuant to a May 2007 order of custody, entered on agreement by theparties, the parties continued to have joint custody of their two children, with the primaryresidence of the children being with the father and the mother having visitation, among othertimes, on alternate weekends from Friday to Monday, and one evening during the week. InSeptember 2007, the mother filed a custody petition seeking full custody of the younger child.The father filed a petition to modify visitation asking that the mother's mid-week visitation [*2]with the children be eliminated.[FN1]After two court appearances, and after Family Court conducted a Lincoln hearing withthe younger child, the parties reached an agreement that joint custody would continue, thechildren's primary physical residence would remain with the father and the May 2007 orderwould be modified to eliminate the mother's midweek visitation with the children, but providedher with visitation from Friday to Sunday, three times each month. An order was enteredmemorializing the parties' agreement, from which the mother now appeals.
Both the mother and Law Guardian argue that the stipulated order should be vacated becausethe settlement was reached only after Family Court disclosed to the parties portions of what thechild stated during the Lincoln hearing.[FN2]Undoubtedly, what transpires at a Lincoln hearing as a general rule is confidential and"the child's right to confidentiality should remain paramount absent a direction to the contrary"(Matter of Hrusovsky v Benjamin, 274 AD2d 674, 676 [2000] [citation omitted]; seeMatter of Lincoln v Lincoln, 24 NY2d 270, 272-273 [1969]). While the court's disclosure ofwhat transpired at the Lincoln hearing was unfortunate—and should not haveoccurred—we cannot say that it constitutes a basis for disturbing an order based upon anotherwise valid agreement between the parties.
The mother appeals from an order that "was entered upon the consent of the parties, theterms of which were clearly set forth on the record" (Matter of Sterling v Dyal, 52 AD3d 894, 895 [2008]; see Matter of Moore v Moore, 56AD3d 982, 983 [2008]). Almost three months passed after Family Court conducted theLincoln hearing before the parties agreed to the stipulation. At no time during thatperiod, or on the court date when the terms of the stipulation were entered into the record, didany of the parties request that the court proceed with a hearing on the petitions. In fact, at thatappearance, when asked in the presence of their counsel if they had any questions regarding thestipulation or the terms of the agreement as set forth on the record, both the mother and fatherstated that they understood the terms of the stipulation and were prepared to agree to it. Whilethe mother suggests that the court's disclosures of the child's testimony given during theLincoln hearing somehow coerced her into giving up her right to a hearing, Family Courtspecifically noted that after speaking with the child, and prior to the parties entering into thestipulation, it was not inclined to change the prior order without conducting a hearing on thepetitions. Based on this representation, the parties independently reached their decisions to settlethe issues that divided them. Moreover, we see no reason to disturb Family Court's findings, asconfirmed by the Law Guardian, that the terms as set forth in the stipulation [*3]were in the children's best interests. Therefore, we reject themother's claim that she entered into the stipulation under duress and, as "no appeal lies from anorder on consent," the appeal must be dismissed (Matter of Sterling v Dyal, 52 AD3d at895; see CPLR 5511; Matter of Moore v Moore, 56 AD3d at 983).
Cardona, P.J., Mercure, Stein and McCarthy, JJ., concur. Ordered that the appeal isdismissed, without costs.
Footnote 1: The mother's petition allegedthat the father was utilizing excessive corporal punishment upon the children. The father'spetition alleged that the mother was routinely failing to send the youngest child to school withoutexplanation or justification.
Footnote 2: The Law Guardian argues that itwas error for Family Court to conduct the Lincoln hearing before the fact-findinghearing was held on the petitions. To this extent, we note that at the initial appearance on thepetitions, the Law Guardian represented that the child was "fairly adamant about [wanting] anopportunity to speak with [the court]," and neither the Law Guardian nor any other partyindicated that when the Lincoln hearing was scheduled, it should be delayed.