| Matter of Myers v Markey |
| 2010 NY Slip Op 05772 [74 AD3d 1344] |
| June 29, 2010 |
| Appellate Division, Second Department |
| In the Matter of Nathan E. Myers, Appellant, v JennyMarkey, Respondent. (Proceeding No. 1.) In the Matter of Jenny Markey, Respondent, v NathanMyers, Appellant. (Proceeding No. 2.) |
—[*1] Barbara H. Kopman, Hicksville, N.Y., attorney for the child.
In two child custody proceedings pursuant to Family Court Act article 6, the father appeals,as limited by his brief, from stated portions of an order of the Family Court, Nassau County(Zimmerman, J.), dated September 3, 2009, which, after a hearing, upon denying the father'smotion to designate the Rockville Centre School District as the subject child's school district,inter alia, sua sponte, modified a prior order of the same court dated September 18, 2007, bychanging the child's legal residence and limiting the father's residential parenting time anddecision-making authority.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and the order dated September 18, 2007 is modified accordingly.
On September 18, 2007, when the subject child was three years old, the parties consented tothe entry of an order which, inter alia, awarded joint legal and residential custody of the childand provided for equal residential parenting time. The order did not contain a provisionregarding the school district where the child would eventually attend kindergarten.
Thereafter, when the parties could not agree as to which school the child would attend, thefather filed a petition seeking an order "grant[ing] petitioner's school district-RVC [RockvilleCentre]." The petition specifically stated that all parts of the prior order were to "remain intact."In response, the mother filed a petition requesting an emergency hearing to prevent the fatherfrom taking the child on September 8, 2009 to the school of the father's choice. Neither petitionsought a modification of the prior order. Nevertheless, in the order appealed from, the FamilyCourt modified the prior order by changing the child's legal residence, limiting the father'sresidential parenting time, and carving out specific areas of decision-making authority. The orderappealed from also directed the mother to enroll the child in the Merrick School District; thefather does not appeal from this portion of the order.[*2]
When the father first appeared in Family Court, he wasadvised of his right to counsel and chose to proceed without an attorney. Accordingly, he wasnot denied the right to the assistance of counsel (see Family Ct Act § 262 [a] [v]).
Generally, a court may " 'grant relief that is warranted by the facts plainly appearing on thepapers on both sides, if the relief granted is not too dramatically unlike the relief sought, theproof offered supports it, and there is no prejudice to any party' " (Clair v Fitzgerald, 63AD3d 979, 980 [2009], quoting Frankel v Stavsky, 40 AD3d 918, 918-919 [2007]).Here, the relief directed by the Family Court was completely different from the relief requestedby the parties. Moreover, since no request was made to modify the prior order, the parties had nonotice and were not afforded an opportunity to address the necessity of such modification.Accordingly, under these circumstances, the Family Court erred in, sua sponte, granting suchrelief as was not requested by the parties (see Clair v Fitzgerald, 63 AD3d at 980-981;Matter of Alexander v Alexander, 62 AD3d 866, 867 [2009]; Matter of Adams vBracci, 61 AD3d 1065, 1067 [2009]). Rivera, J.P., Balkin, Austin and Roman, JJ., concur.