| Matter of Whiting v Ward |
| 2012 NY Slip Op 05352 [97 AD3d 861] |
| July 5, 2012 |
| Appellate Division, Third Department |
| In the Matter of Amanda Whiting, Respondent, v Anthony Ward,Appellant. (And Three Other Related Proceedings.) |
—[*1] Alexandra G. Verrigni, Rexford, for respondent. Daryl S. Cutler, Malta, attorney for the child.
Peters, P.J. Appeal from an order of the Family Court of Saratoga County (Jensen, J.),entered May 16, 2011, which, sua sponte, dismissed the parties' applications, in four proceedingspursuant to Family Ct Act article 6, to modify and/or enforce prior orders of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarriedparents of a daughter (born in 2006). Pursuant to a March 2010 order entered upon consent, theparties continued to share joint legal custody of the child, with the mother having primaryphysical custody and the father receiving liberal visitation. In August 2010, again uponstipulation of the parties, an order was entered which mirrored the terms of the March 2010 orderwith the exception of the addition of a provision regarding the drop-off location for the exchangeof the child. The father appealed from this order.
While the appeal from the August 2010 order was pending, the mother commenced aproceeding seeking modification of the visitation schedule set forth in the order, and the father[*2]commenced three proceedings seeking enforcement of itsterms as well as those contained in a 2009 order. At the parties' initial appearance, Family Court,sua sponte, dismissed all of the petitions based solely on the father's then-pending appeal, statingthat it was the court's "position" not to entertain new petitions until an appeal has beendetermined by this Court because to do so would "usurp the authority of the Appellate Division."An order of dismissal was entered by the court in May 2011.[FN1]The father appeals.[FN2]
As a preliminary matter, the attorney for the child has advised us in his brief that severalpetitions have been filed while this appeal was pending and that another order has been enteredaddressing issues of custody and visitation between the parties. However, that order has not beenprovided to this Court and we are unaware whether it left intact or superseded the provisions ofthe orders that the father sought to enforce. Accordingly, we cannot conclude that this appeal hasbeen rendered moot (see Matter ofHissam v Hissam, 84 AD3d 1513, 1514 n [2011], lv dismissed and denied 17NY3d 855 [2011]; see also Hughes vGallup-Hughes, 90 AD3d 1087, 1088 [2011]).
Family Court's dismissal of the father's enforcement petitions was error. Family Ct Act§ 1114 (a) specifically provides that the filing of a notice of appeal from a Family Courtorder does not give rise to an automatic stay. As no party moved this Court for a stay ofthe August 2010 order pending resolution of the appeal, it remained binding on and enforceableby the parties during the prosecution of the father's appeal (see Family Ct Act §1114; Matter of John H., 60 AD3d1168, 1169 [2009]; Matter of JohnH., 56 AD3d 1024, 1026 [2009]). The fact that the outcome of the appeal may havenullified or otherwise altered portions of the order sought to be enforced or modified isirrelevant. Moreover, if it is shown that subsequent proceedings result in an order that supersedesor replaces provisions of an order sought to be enforced or challenged on appeal, this Court willdismiss the appeal as moot (see e.g.Matter of Yishak v Ashera, 68 AD3d 1282, 1284 [2009]; Matter of Edward S. v Kelly S., 18AD3d 976, 977 [2005]; Matter of Carnevale-Martin v Stone, 241 AD2d 779, 780[1997]). In short, Family Court's practice of declining to entertain Family Ct Act article 6petitions while an appeal is pending from an order entered pursuant to that article is without legalfoundation.
Lahtinen, Spain, Malone Jr. and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as dismissed respondent's enforcementpetitions; matter remitted to the Family Court of Saratoga County for further proceedings notinconsistent with this Court's decision; and, as so [*3]modified,affirmed.
Footnote 1: Following Family Court'sdismissal of his enforcement petitions, the father withdrew his appeal from the August 2010order.
Footnote 2: The mother's failure to take anappeal from Family Court's order precludes us from granting her any affirmative relief(see Family Ct Act § 1113; Hecht v City of New York, 60 NY2d 57, 60-61[1983]).