Helmeyer v. Setzer
| Decision Date | 05 June 2019 |
| Docket Number | 2018–10214,Docket Nos.V–1642–18/18A, V–1642–18/18B, V-1642-18/18C,2019–05678 |
| Citation | 173 A.D.3d 740,105 N.Y.S.3d 541 |
| Parties | In the Matter of Thomas HELMEYER, Appellant, v. Erika SETZER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
173 A.D.3d 740
105 N.Y.S.3d 541
In the Matter of Thomas HELMEYER, Appellant,
v.
Erika SETZER, Respondent.
2018–10214
2019–05678
Docket Nos.V–1642–18/18A, V–1642–18/18B, V-1642-18/18C
Supreme Court, Appellate Division, Second Department, New York.
Argued - May 21, 2019
June 5, 2019
Thomas Helmeyer, Richmond Hill, NY, appellant pro se.
Christopher X. Maher, Esq., LLC, Mahopac, NY, for respondent.
Albino J. Testani, Jamaica, NY, attorney for the child.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.
DECISION & ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the
mother's motion which was to dismiss the father's modification and violation petition is denied, and the matter is remitted to the Family Court, Queens County, for a hearing and a determination thereafter of the father's modification and violation petition; and it is further,
ORDERED that the amended order is affirmed insofar as appealed from, without costs or disbursements.
The parties were divorced by a judgment entered in the Supreme Court, Dutchess County, on February 16, 2010. They have one child together, born in January 2008. In an order of the Family Court, Putnam County, dated August 23, 2011 (hereinafter the custody order), the parties were awarded joint legal custody of the child, with the mother having primary physical custody and the father having parental access. The mother resided with the child in Putnam County until August 2015, when they moved to Connecticut without notification to the father. Thereafter, between August 2015 and 2017, the father filed numerous modification and violation petitions against the mother in the Family Court, Putnam County. In its last order, dated September 25, 2017, the Family Court, Putnam County, determined that the father's most recent application, like six previous applications, had no merit, dismissed it, and prohibited the father from filing further applications without prior written approval. The father's remaining petitions in Putnam County were dismissed without prejudice in November 2017.
On or about January 11, 2018, the father filed a modification and violation petition in the Family Court, Queens County. Venue was predicated in Queens County based on the father's residence there. The petition alleged that the mother violated the custody order by, among other things, moving out of state and denying him contact with the child. The petition sought to hold the mother in contempt, as well as a temporary change in custody from the mother to the father pending a hearing. On the same date, the father moved in the same court by order to show cause to hold the mother in contempt for willful violation of the custody order and to award him temporary legal and physical custody of the child pending a hearing.
By notice of motion dated April 19, 2018, the mother moved to dismiss the modification and violation petition for lack of jurisdiction and, alternatively, on the ground that New York is an inconvenient forum, arguing that it was in the best interests of the child for the Family Court, Queens County, to decline to exercise jurisdiction and for all matters relating to custody to be heard in Connecticut. In an order dated April 25, 2018, the
Family Court exercised jurisdiction over the father's motion and granted the mother leave to renew her motion to dismiss the modification and violation petition. The court denied, on the merits, the father's motion to hold the mother in contempt and to award him temporary custody. The April 25, 2018,
order was subsequently amended, upon the mother's motion, on July 9, 2018, so as to delete certain language, and the father appeals from the amended order dated July 9, 2018.
Following the issuance of the April 25, 2018, order, the mother, inter alia, renewed her motion to dismiss the modification and violation petition. The attorney for the child supported the motion, and the father opposed the motion. In an order dated July 9,...
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