Forrestel v. Jonkman

• Decision Date: 24 March 2017
• Parties: Ryan M. FORRESTEL, Plaintiff–Respondent, v. Marguerita M.C. JONKMAN, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1674
51 N.Y.S.3d 273

Ryan M. FORRESTEL, Plaintiff–Respondent,
v.
Marguerita M.C. JONKMAN, Defendant–Appellant. (Appeal No. 1.).

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

March 24, 2017.

51 N.Y.S.3d 274

Marguerita M.C. Jonkman, Defendant–Appellant Pro Se.

John P. Pieri, Buffalo, for Plaintiff–Respondent.

PRESENT: WHALEN, P.J., SMITH, CARNI, LINDLEY, AND NEMOYER, JJ.

MEMORANDUM:

In this postdivorce proceeding, defendant former wife appeals from three orders. By the order in appeal No. 1, Supreme Court denied defendant's petition seeking to modify an existing order of joint custody and visitation that we previously affirmed (Forrestel v. Forrestel, 125 A.D.3d 1299, 3 N.Y.S.3d 483, lv. denied 25 N.Y.3d 904, 2015 WL 2026161 ). By the order in appeal No. 2, the court reserved decision on plaintiff former husband's motion seeking payments allegedly owed to him by defendant under the property settlement agreement incorporated in the parties' judgment of divorce, and denied defendant's cross motion seeking, inter alia, similar relief under that agreement. By the order in appeal No. 3, the court denied defendant's motion seeking its recusal.

We conclude in appeal No. 1 that the court properly denied defendant's petition because she failed to "make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody order should be modified" (Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1417–1418, 770 N.Y.S.2d 248 [internal quotation marks omitted]; see Matter of Strachan v. Gilliam [appeal No. 1], 129 A.D.3d 1679, 1679, 12 N.Y.S.3d 424, lv. dismissed 26 N.Y.3d 994, 19 N.Y.S.3d 215, 41 N.E.3d 73 ; Matter of Sierak v. Staring, 124 A.D.3d 1397, 1398, 1 N.Y.S.3d 696 ; Matter of Chrysler v. Fabian, 66 A.D.3d 1446, 1447, 885 N.Y.S.2d 861, lv. denied 13 N.Y.3d 715, 895 N.Y.S.2d 314, 922 N.E.2d 903 ).

"An order reserving decision is not appealable" (

51 N.Y.S.3d 275

Matter of Trader v. State of New York, 277 A.D.2d 978, 978, 716 N.Y.S.2d 626 ; see Schlau v. City of Buffalo, 125 A.D.3d 1546, 1548, 4 N.Y.S.3d 450 ), and we therefore...