Julie G. v. Yu-Jen G.

• Decision Date: 17 February 2011
• Citation: 81 A.D.3d 1079,917 N.Y.S.2d 355
• Parties: In the Matter of JULIE G., Respondent, v. YU-JEN G., Appellant. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 355
81 A.D.3d 1079

In the Matter of JULIE G., Respondent,
v.
YU-JEN G., Appellant.
(And Another Related Proceeding.)

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

Feb. 17, 2011.

917 N.Y.S.2d 358

John A. Cirando, Syracuse, for appellant.

Cynthia Feathers, Pro Bono Appeals Program, Saratoga Springs, for respondent.

Jane W. Williams, Cropseyville, attorney for the children.

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

McCARTHY, J.

81 A.D.3d 1079

Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.), entered August 8, 2007, which, among other things, granted petitioner's applications, in two proceedings pursuant to Family Ct. Act article 8, for an order of protection.

Petitioner and respondent are the parents of two sons (born in 1989 and 1993). In August 2006, while the parties were separated, petitioner commenced the first of these proceedings

81 A.D.3d 1080

against respondent, pursuant to Family Ct. Act article 8, alleging that he had committed a family offense. Family Court (Cholakis, J.) issued a temporary order of protection requiring respondent to stay away from petitioner and the children and have no contact with them. The court also granted respondent's motion to transfer the proceeding to Saratoga County, where the parties had previously litigated custody.

In December 2006, petitioner commenced the second of these proceedings alleging that respondent violated the temporary order of protection. The parties subsequently appeared in Saratoga County, where Family Court (Abramson, J.) declined to accept the transfer and sent the proceedings back to Rensselaer County. The court also found respondent in contempt for failing to follow court directions to maintain courtroom decorum, with a sanction of three days in jail.

Following a fact-finding hearing, Family Court (Cholakis, J.) found that petitioner had established that respondent committed a family offense and willfully violated the temporary order of protection. At the conclusion of a dispositional hearing, the court issued an order of protection directing respondent to stay away from and refrain from communicating with petitioner and the children for five years. The court also imposed a one-year term of probation, required respondent to complete a batterer's education program and mental health evaluation, and imposed a 90-day period of incarceration. Respondent appeals.

Saratoga County Family Court did not abuse its discretion in sending the matter back to Rensselaer County Family Court. Although venue was proper in either county because petitioner lived in Rensselaer County and respondent lived in Saratoga County when the first proceeding was commenced ( see Family Ct. Act § 171), respondent moved to Schenectady County prior to the first appearance in Saratoga County. Because neither party then resided in that county, Saratoga County Family Court did not err in exercising its discretion to transfer the proceeding to Rensselaer County, even without a motion by any party ( see Family Ct. Act § 174; Matter of Fusco v. Roth, 100 Misc.2d 288, 292-293, 418 N.Y.S.2d 900 [1979] ).

917 N.Y.S.2d 359

Respondent's challenge to the summary contempt order in Saratoga County is not properly before this Court. No appeal lies from such an order, which is properly reviewed by a proceeding pursuant to CPLR article 78 commenced in Supreme Court ( see Judiciary Law § 755; Matter of Kelly v. Kelly, 34 A.D.3d 809, 809, 826 N.Y.S.2d 117 [2006]; Matter of Shockome v. Shockome, 30 A.D.3d 529, 530, 817 N.Y.S.2d 115 [2006] ). "[B]ecause this matter involves a Family Court Judge, this Court is without original jurisdiction to entertain it as a

81 A.D.3d 1081

CPLR article 78 proceeding" ( Matter of Kelly v. Kelly, 34 A.D.3d at 809, 826 N.Y.S.2d 117; see Matter of Shockome v. Shockome, 30 A.D.3d at 530, 817 N.Y.S.2d 115).

Respondent's decision to proceed without counsel was a knowing, voluntary and intelligent waiver of his...