| Matter of DeFrancesco v Mushtare |
| 2010 NY Slip Op 07430 [77 AD3d 1079] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of James DeFrancesco, Appellant, v Stacy Mushtare,Respondent. (And Two Other Related Proceedings.) |
—[*1] Springs, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Saratoga County (Seibert, Jr., J.),entered June 23, 2009, which dismissed petitioner's applications, in three proceedings pursuant toFamily Court Act article 6, to, among other things, modify a prior order of custody.
The parties are the divorced parents of a son born in 1996. In June 2008, the parties enteredinto an agreement in Family Court whereby respondent (hereinafter the mother) was granted solecustody of the child with petitioner (hereinafter the father) having certain visitation rights. In July2008, the father commenced the first of these three proceedings seeking to modify the custodialarrangement based on allegations that the mother attacked and bit the child and, later, alleging,among other things, that the mother violated the court-ordered visitation schedule. A trial wasconducted on June 18, 2009 and both parties appeared pro se. The father called several witnessesincluding a psychologist, a State Police investigator and the child. Notably, the father's evidenceestablished that the child had certain behavioral problems, that the mother bit the child to protectherself from the child who was brandishing a butcher knife, and that the mother, her currenthusband and the child have been undergoing counseling. The psychologist testified that thechild's behavioral issues have improved with treatment and opined that the child should remainwith the mother. The father also presented the testimony of the child, who denied any abuse andtestified that he wanted to live with the mother. At the close of the father's case, [*2]the attorney for the child and the mother moved to dismiss thepetition based on his failure to establish a change in circumstances. In response to the motion todismiss, the father advised "[t]hat's fine with me, Your Honor." Family Court thereafterdismissed the petitions and the father now appeals.
It is well settled that no appeal lies from an order entered on consent (see Matter of Bianca QQ. [KiyonnaSS.], 75 AD3d 679, 681 [2010]; Matter of Fantasia Y., 45 AD3d 1215, 1216 [2007]; Matter ofForbus v Stolfi, 300 AD2d 852, 852 [2002], lv dismissed 99 NY2d 642 [2003]). Tothe extent that the father claims that his consent to the order of dismissal was not knowing,intelligent or voluntary, such an argument should have been pursued in a motion to vacate theorder made before Family Court (seeMatter of Mary UU. [Michael UU.—Marie VV.], 70 AD3d 1227, 1228 [2010];Matter of Cheyenne QQ., 37 AD3d977, 978 [2007]). This the father did not do and, accordingly, his appeal must be dismissed.In light of this determination, we need not address the father's remaining contentions.
Peters, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the appeal is dismissed,without costs.