| Matter of Clark v Clark |
| 2011 NY Slip Op 04789 [85 AD3d 1350] |
| June 9, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kathleen M. Clark, Respondent, v Michael J.Clark, Appellant. |
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McCarthy, J. Appeals (1) from an order of the Family Court of Schenectady County (Ellis,S.M.), dated May 11, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 4, to hold respondent in willful violation of a prior order of support, and (2)from an order of said court (Powers, J.), entered June 16, 2010, which ordered respondent toundergo a psychiatric evaluation.
A Support Magistrate granted petitioner's application to find respondent in willful violationof a prior order of support, recommended that he be incarcerated and referred the matter toFamily Court for confirmation (see Family Ct Act § 439 [a]; see also§ 454 [3]). When he appeared in court upon that referral, respondent raised his voice,persisted in attempting to make the court review a prior order and refused to stop speaking whendirected to do so by the court, a court officer and his own attorney. The court ordered thatrespondent submit to a psychiatric evaluation and adjourned the proceeding. Respondent appealsfrom the Support Magistrate's order and Family Court's order requiring an evaluation.
A Support Magistrate's order finding a willful violation and recommending incarceration isnot a final order and "shall have no force and effect until confirmed by a judge of the court"(Family Ct Act § 439 [a]). Hence, such an order is not appealable as of right (seeFamily Ct Act § 1112 [a]; Matterof Huard v Lugo, 81 AD3d 1265, 1266 [2011], lv denied 16 NY3d 710 [2011];Matter of Dakin v Dakin, 75 AD3d639, 640 [2010], lv dismissed 15 NY3d 905 [2010]; see also Anderson v Harris, 68 AD3d472, 474 [2009]). Family Court's order that respondent submit to a psychiatric evaluation issimilarly not a final order of disposition from [*2]which anappeal would lie as of right, and respondent has not sought leave to appeal (see Family CtAct § 1112 [a]; Matter of Chang v Conway, 302 AD2d 459 [2003]; Matter ofFrancis M. v Anne M., 279 AD2d 279, 280 [2001]; Dillard v Dillard, 48 AD2d 666[1975]; Firestone v Firestone, 44 AD2d 671, 672 [1974]). Accordingly, the appeals fromboth orders must be dismissed.
Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the appeals aredismissed, without costs.