Fifield v. Whiting

• Decision Date: 24 April 2014
• Citation: 2014 N.Y. Slip Op. 04097,987 N.Y.S.2d 479,118 A.D.3d 1072
• Parties: In the Matter of Jennifer L. FIFIELD, Respondent, v. Adam A. WHITING, Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1072

987 N.Y.S.2d 479

2014 N.Y. Slip Op. 04097

In the Matter of Jennifer L. FIFIELD, Respondent,

v.Adam A. WHITING, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 5, 2014.

April 24, 2014.

Emily Karr–Cook, Elmira, for appellant.

Hinman, Howard & Kattell, LLP, Binghamton (Michael S. Sinicki of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, McCARTHY, GARRY and DEVINE, JJ.

McCARTHY, J.

Appeal from an order of the Family Court of Broome County (Charnetsky, J.), entered March 4, 2013, which, in a proceeding pursuant to Family Ct. Act article 4, dismissed respondent's objections to an order of the Support Magistrate.

The parties are the divorced parents of three children. In the parties' custody and child support agreement, which was later incorporated into their judgment of divorce, respondent (hereinafter the father) was required to pay, among other things, 50% of the child-care expenses incurred by petitioner (hereinafter the mother) that were related to her education or employment. The mother filed a petition alleging that the father violated the child support agreement by failing to pay for child-care expenses. Following a hearing, the Support Magistrate determined that the father had willfully failed to obey a prior court order, required that he pay $3,300 plus interest for overdue child-care expenses, and required that he pay the mother's counsel fees. In an amended order, the Support Magistrate specified the exact amount of counsel fees.

Before the amended order was entered, the father's counsel filed a notice of appeal from the Support Magistrate's original order. The father's counsel filed written objections to the Support Magistrate's original order and the father, who was dissatisfied with his representation, filed his own objections. By order entered March 4, 2013, Family Court dismissed the objections filed by the father's counsel, because counsel failed to file proof of service with the court. The court dismissed the father's pro se objections, because they were not signed by counsel. The father did not file a notice of appeal from that order.

We will consider the father's appeal despite the defects in his notice of appeal. Although no appeal lies from an order that has been amended—because the amended order supercedes the original order—dismissal of the appeal is unnecessary where the amendment is immaterial to the appeal ( see Matter of Fullam v. Fullam, 39 A.D.3d 897, 897 n., 835 N.Y.S.2d 455 [2007],lv. denied9 N.Y.3d 802, 840 N.Y.S.2d 762, 872 N.E.2d 875 [2007];see also Adams v. Daughtery, 110 A.D.3d 1454, 1455, 972 N.Y.S.2d 774 [2013];People v. Russo, 68 A.D.3d 1437, 1437 n. 1, 891 N.Y.S.2d 213 [2009] ). We ignore that defect here, because the order was only amended to include the specific amount of counsel fees and that aspect of the order is not at issue on appeal ( seeCPLR 5520[c]; see also Matter of Loomis v. Yu–Jen G., 81 A.D.3d 1083, 1084, 918 N.Y.S.2d 220 [2011];Matter of Michaela PP. [Derwood PP.], 67 A.D.3d 1083, 1084 n., 886 N.Y.S.2d 923 [2009] ). More problematic is that an appeal does not lie from a Support Magistrate's order; the proper procedure is to file objections and then, if necessary, appeal from Family Court's order ruling on the objections ( seeFamily Ct. Act § 439 [e] ). This Court has the discretion to treat a notice of appeal as valid despite the notice being premature or containing an inaccurate description of the order being appealed ( seeCPLR 5520[c]; see alsoCPLR 5512 [permitting court to deem appeal taken from proper order if timely appeal is taken from something other than an appealable paper, no prejudice results and the proper paper is furnished to the appellate court] ). Under the circumstances here, and inasmuch as the errors in filing an inaccurate notice of appeal were attributable to the father's counsel, we will treat the notice of appeal as validly appealing from Family Court's order dismissing the objections.

Family Court did not abuse its discretion in dismissing the objections filed by the father's counsel. While the court had discretion to overlook counsel's failure to timely file proof of service of objections on the opposing party—despite such filing being required by statute ( seeFamily Ct. Act § 439[e] )—we cannot find it to be an abuse of discretion for a court to demand that a party adhere to the statutory requirements ( see Matter of Riley v. Riley, 84 A.D.3d 1473, 1474, 921 N.Y.S.2d 914 [2011] ). On the other hand, the court...