| Matter of McDonald v Reed |
| 2009 NY Slip Op 08905 [68 AD3d 1181] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of James W. McDonald III, Respondent, v Jhenna A.Reed, Now Known as Jhenna A. Laflair, Appellant. (And Another RelatedProceeding.) |
—[*1] Nicholas Pignone, Potsdam, for respondent. Maureen C. McGaw, Law Guardian, Canton.
Rose, J. Appeal from an order of the Family Court of St. Lawrence County (Berke, J.H.O.),entered October 30, 2008, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) each soughtcustody of their child. During a hearing conducted by a Judicial Hearing Officer (hereinafterJHO), the parties and the Law Guardian ultimately agreed to a settlement which provided forjoint custody, physical placement with the mother and extensive visitation for the father. Theterms of the agreement were placed on the record and incorporated in a written order issued bythe JHO.
The mother now questions the authority of the JHO to issue the consent order because thereis no order of reference in the record pursuant to CPLR 4317. The JHO's authority, however,arose from Judiciary Law article 22 upon assignment by the local administrative judge(see Judiciary Law §§ 851, 853; 22 NYCRR 122.6). The parties consentedto have their petitions [*2]heard by the JHO (cf. Matter ofHeather J., 244 AD2d 762, 763 [1997]), and there is nothing in the record indicating that theJHO was not lawfully assigned to their proceedings. Inasmuch as the consent order was enteredpursuant to a stipulated settlement among the parties and the Law Guardian, with the mother andthe father both represented by counsel, it is not appealable (see Matter of Sterling v Dyal, 52 AD3d 894, 895 [2008];Matter of Forbus v Stolfi, 300 AD2d 852, 852 [2002], appeal dismissed and lvdismissed 99 NY2d 642 [2003]). Since the mother has not sought to vacate the order or setthe stipulation aside (see Matter ofCollins v Brush, 17 AD3d 726, 727 [2005]; Dudla v Dudla, 304 AD2d 1009,1010 [2003]), her remaining contentions are unavailing.
Peters, J.P., Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the appeal isdismissed, without costs.