| Matter of Saunders v Hamilton |
| 2010 NY Slip Op 06063 [75 AD3d 1172] |
| July 9, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Rachelle A. Saunders, Appellant, v ToddHamilton, Respondent. |
—[*1] Todd Hamilton, respondent-respondent pro se.
Appeal from an order of the Family Court, Livingston County (Dennis S. Cohen, J.), enteredSeptember 14, 2009 in a proceeding pursuant to Family Court Act article 6. The order dismissedthe petition.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner mother commenced this proceeding seeking, inter alia, to modify aSeptember 2009 custody order that was entered in Indiana. The mother and the children hadresided in Indiana from September 2008 until March 2009 but, at the time the proceeding wascommenced, they resided in New York and respondent father resided in Indiana. We note at theoutset that Family Court apparently treated the mother's order to show cause, pursuant to whichthe mother sought the instant relief, as a "petition" for modification of a prior order of custody,and dismissed the petition. We affirm.
Contrary to the contention of the mother, the court properly concluded that it lackedjurisdiction to determine the petition (see Domestic Relations Law § 76-b; Matter of Calvo v Herring, 51 AD3d916 [2008]; Stocker vSheehan, 13 AD3d 1, 6-7 [2004]). There is no indication in the record that the Indianacourt determined that it no longer had exclusive, continuing jurisdiction under DomesticRelations Law § 76-a or that New York would be a more convenient forum underDomestic Relations Law § 76-f (see § 76-b [1]). Indeed, the Indiana court'sorder was entered less than one week before the mother commenced this proceeding in NewYork, and the order noted that the issue of child support was "deferred." Further, the fathercontinued to reside in Indiana, and thus neither Family Court nor the Indiana court coulddetermine that the children and their parents did not reside in Indiana (see § 76-b[2]; Calvo, 51 AD3d 916 [2008]; Stocker, 13 AD3d at 6-7).
The mother's contentions concerning Family Court's December 2008 order are not properlybefore us inasmuch as the mother failed to take a timely appeal from that order (see generally Matter of Jasper QQ., 64AD3d 1017, 1019-1020 [2009], lv denied 13 NY3d 706 [2009]; Matter ofRogers v Bittner, 181 AD2d 990 [1992]). In any event, the mother was not aggrieved by theDecember [*2]2008 order inasmuch as that order dismissed thefather's petition seeking modification of a prior custody order (see CPLR 5511; Matter of Brian JJ. v Heather KK., 61AD3d 1285, 1287 [2009]; Matterof Green v Keough, 32 AD3d 591 [2006]). Although the mother contends that theDecember 2008 order "[gave] jurisdiction to . . . Indiana" and "result[ed in] custodyof the children being given to the [father]," that contention is not supported by the record. TheDecember 2008 order dismissed the father's modification petition for lack of jurisdiction becausethe parties and their children all resided in Indiana at that time (see Domestic RelationsLaw § 76-a [1] [b]). Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.