| Matter of Giousos v Giousos |
| 2010 NY Slip Op 03931 [73 AD3d 775] |
| May 4, 2010 |
| Appellate Division, Second Department |
| In the Matter of Vasilios Giousos, Appellant, v SimoneGiousos, Respondent. |
—[*1] Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg of counsel), for respondent. Lawrence A. Weinreich, Plainview, N.Y., attorney for the child.
In related proceedings pursuant to Family Court Act article 6, the father appeals from anorder of the Family Court, Nassau County, dated January 28, 2009 (St. George, J.), which,without a hearing, denied his petition, in effect, to modify the custody and visitation provisionsof a judgment of divorce of the Supreme Court, Queens County (Sampson, J.), dated August 29,2002, so as to award him sole custody of the subject child, and denied his petition, in effect, tohold the mother in contempt based on her alleged willful violation of a visitation order of thesame court (Eisman, J.), dated August 6, 2008.
Ordered that the appeal from so much of the order as denied the father's petition, in effect, tomodify the custody and visitation provisions of the parties' judgment of divorce is dismissed asacademic, without costs or disbursements; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
Three weeks after denying the father's petition for sole custody of the subject child, theFamily Court conducted a full evidentiary hearing on the mother's petition for custody. OnFebruary 18, 2009, the Family Court issued a final order of custody and visitation granting theparties joint legal custody, with residential custody to the mother. "It is a fundamental principleof our jurisprudence that the power of a court to declare the law only arises out of, and is limitedto, determining the rights of persons which are actually controverted in a particular case pendingbefore the tribunal" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713 [1980]). "Ingeneral an appeal will be considered moot unless the rights of the parties will be directly affectedby the determination of the appeal and the interest of the parties is an immediate consequence ofthe judgment" (id. at 714; see Saratoga County Chamber of Commerce v Pataki,100 NY2d 801, 810-812 [2003], cert denied 540 US 1017 [2003]; see also Matter of Gonzalez vGonzalez, 57 AD3d 896, 897 [2008]; Matter of Russo v Russo, 236 AD2d 412[1997]). Under the circumstances herein, the Family Court's order dated February 18, 2009, hasrendered academic the father's appeal from so much of the order [*2]dated January 28, 2009, as denied his petition for sole custody.
The Family Court properly denied the father's petition, in effect, to hold the mother incontempt based on her alleged violation of certain provisions of a visitation order dated August6, 2008. The father failed to allege that the mother significantly defeated, impaired, or prejudicedhis visitation rights (see Judiciary Law § 753 [A]; Matter of Terry v Oliver, 63 AD3d1079 [2009]; Matter of Gonzalez vHunter, 50 AD3d 1262, 1264 [2008]). Mastro, J.P., Covello, Eng and Belen, JJ., concur.