| Matter of Rumpel v Powell |
| 2015 NY Slip Op 05234 [129 AD3d 1344] |
| June 18, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Kathy Rumpel et al., Respondents, vAaron Powell, Appellant. |
Norbert A. Higgins, Binghamton, for appellant.
Levene Gouldin & Thompson, LLP, Binghamton (Bruno Colapietro ofcounsel), for respondents.
Marcy L. Cox, Endwell, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Broome County(Connerton, J.), entered January 30, 2014, which, among other things, grantedpetitioners' application, in a proceeding pursuant to Family Ct Act article 6, for custodyof respondent's child.
In December 2012, respondent (hereinafter the father) and the child's mother, whowere in the process of obtaining a divorce, entered into a stipulation awarding them jointlegal custody of the subject child (born in 2007) with primary physical custody to themother and specified periods of visitation to the father. Three months later, the motherand a male friend were found dead at the former marital residence—the apparentvictims of a double homicide. Believing the father to be the prime suspect in thosekillings, petitioners, the child's maternal grandparents (hereinafter the grandparents),moved by order to show cause for custody of the child. Family Court awarded thegrandparents temporary custody of the child, and a temporary no-contact order ofprotection was entered against the father.
The matter proceeded to a hearing in October 2013, at which time counsel for thefather indicated that the father consented to an award of custody in favor of thegrandparents. Although the father had not filed a petition seeking visitation with thechild, Family Court nonetheless allowed the father to present proof relative to that issue.The father, who at the time was incarcerated in the local jail awaiting trial for the murderof the mother and her male friend, did [*2]not testify. Atthe conclusion of the hearing, Family Court awarded the grandparents custody of thechild upon consent and, upon due consideration of all of the relevant circumstances,denied the father's informal request for visitation. This appeal by the father ensued.
To the extent that the father challenges the award of custody to the grandparents, weneed note only that "no appeal lies from an order entered upon a party's consent" (Matter of Connor CC. [JenniferDD.], 99 AD3d 1127, 1127 [2012]; see Matter of Connor S. [Joseph S.], 122 AD3d 1096, 1097[2014]; Matter of DeFrancescov Mushtare, 77 AD3d 1079, 1080 [2010]; Matter of Verry v Verry, 63 AD3d 1228, 1230 [2009],lv denied 13 NY3d 707 [2009]). Rather, where, as here, a party contends thatsuch consent was coerced or otherwise invalid, the appropriate remedy is to move tovacate the underlying order (see Matter of Connor S. [Joseph S.], 122 AD3d at1097; Matter of Connor CC. [Jennifer DD.], 99 AD3d at 1127; Matter ofDeFrancesco v Mushtare, 77 AD3d at 1080). As nothing in the record suggests thatthe father moved to vacate the subject order, his challenge to the award of custody to thegrandparents is not properly before us, and this portion of the appeal must bedismissed.
With regard to that portion of the father's appeal contesting the denial of his informalrequest for visitation, it is now moot. At the time of the underlying hearing, the fatherenjoyed two well-established presumptions: the presumption of innocence afforded to allcriminal defendants and, more to the point, the presumption that—notwithstandinghis incarceration—visitation with the subject child was in the child's best interests(see Matter of Kadio vVolino, 126 AD3d 1253, 1254 [2015]; Matter of Lapham v Senecal, 125 AD3d 1210, 1210[2015]; Matter of Telfer vPickard, 100 AD3d 1050, 1051 [2012]; Matter of Culver v Culver, 82 AD3d 1296, 1297 [2011],appeal dismissed 16 NY3d 884 [2011], lv denied 17 NY3d 710 [2011]).However, the attorney for the child advises this Court—and the father does notdispute—that, during the pendency of this appeal, the father was convicted of onecount of murder in the first degree and two counts of murder in the second degree andwas sentenced in the aggregate to life in prison without the possibility ofparole.[FN*]
In light of the foregoing, the legal landscape has now changed. Having beenconvicted of murdering the child's mother, the father no longer can rely upon, amongother things, the presumption in favor of visitation. Rather, upon the father's conviction,a new presumption arose—one that "reflects a legislative determination that thevery act of murder in the first or second degree of a child's parent is so extremethat. . . neither custody nor visitation [with the murdering parent] isappropriate or in that child's best interest" (Matter of Scott JJ., 280 AD2d 4, 9[2001]). Although this presumption is rebuttable (see id.), no visitation may beawarded to the father—by Family Court or any other court—unless anduntil the father pleads and proves the specific elements of Family Ct Act§ 1085 and Family Court further concludes that visitation would bein the child's best interests (see Domestic Relations Law § 240[1-c]; Family Ct Act § 1085 [1], [2]; Matter of Cardozo v Wlasiuk, 23 AD3d 930, 932 [2005],lv denied 6 NY3d 706 [2006]; Matter of Scott JJ., 280 AD2d at 9).
Simply put, in light of the father's documented conviction and the fact that an awardof visitation at this time is statutorily prohibited (see Domestic Relations Law§ 240 [1-c]; Family Ct Act § 1085 [2]), and absent anyindication that the father has formally sought visitation with his child following suchconviction and/or attempted to fit such a request within the narrow confines of Family CtAct § 1085 (1) (see Matter of Cardozo v Wlasiuk, 23 AD3d at 932),we [*3]find that there is no relief to award to the father atthis juncture. Accordingly, that portion of the father's appeal contesting the denial of hisinformal request for visitation is moot and must be dismissed (cf. Matter of Samantha WW. vGerald XX., 107 AD3d 1313, 1315 [2013]; Matter of Young v Espada, 95 AD3d 1478, 1478-1479[2012]; Matter of Sullivan vSullivan, 90 AD3d 1172, 1175 [2011]; Matter of Dobrouch v Reed, 61 AD3d 1288, 1289[2009]).
McCarthy, J.P., Lynch and Clark, JJ., concur. Ordered that the appeal is dismissed,without costs.
Footnote *:The father has sincefiled a notice of appeal from the judgment of conviction.