Saunders v. Hamilton

• Decision Date: 09 July 2010
• Parties: In the Matter of Rachelle A. SAUNDERS, Petitioner-Appellant, v. Todd HAMILTON, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 856
75 A.D.3d 1172

In the Matter of Rachelle A. SAUNDERS, Petitioner-Appellant,
v.
Todd HAMILTON, Respondent-Respondent.

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

July 9, 2010.

904 N.Y.S.2d 857

Rachelle A. Saunders, Petitioner-Appellant Pro Se.

Todd Hamilton, Respondent-Respondent Pro Se.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, PINE, AND GORSKI, JJ.

MEMORANDUM:

75 A.D.3d 1172

Petitioner mother commenced this proceeding seeking, inter alia, to modify a September 2009 custody order that was entered in Indiana. The mother and the children had resided in Indiana from September 2008 until March 2009 but, at the time the proceeding was commenced, they resided in New York and respondent father resided in Indiana. We note at the outset that Family Court apparently treated the mother's order to show cause, pursuant to which the mother sought the instant relief, as a "petition" for modification of a prior order of custody, and dismissed the petition. We affirm.

Contrary to the contention of the mother, the court properly concluded that it lacked jurisdiction to determine the petition ( see Domestic Relations Law § 76-b; Matter of Calvo v. Herring, 51 A.D.3d 916, 858 N.Y.S.2d 731; Stocker v. Sheehan, 13 A.D.3d 1, 6-7, 786 N.Y.S.2d 126). There is no indication in the record that the Indiana court determined that it no longer had exclusive, continuing jurisdiction

75 A.D.3d 1173

under Domestic Relations Law § 76-a or that New York would be a more convenient forum under Domestic Relations Law § 76-f ( see § 76-b [1] ). Indeed, the Indiana court's order was entered less than one week before the mother commenced this proceeding in New York, and the order noted that the issue of child support was "deferred." Further, the father continued to reside in Indiana, and thus neither Family Court nor the Indiana court could determine that the children and their parents did not reside in Indiana ( see § 76-b [2]; Calvo, 51 A.D.3d 916, 858 N.Y.S.2d 731; Stocker, 13 A.D.3d at 6-7, 786 N.Y.S.2d 126).

904 N.Y.S.2d 858

The mother's contentions concerning Family Court's December 2008 order are not properly before us inasmuch as the mother failed to take a timely appeal from that order ( see generally Matter of Jasper QQ., 64 A.D.3d 1017, 1019-1020, 883 N.Y.S.2d 344, lv. denied 13 N.Y.3d 706, 887 N.Y.S.2d 4, 915 N.E.2d 1182; Matter of Rogers v. Bittner, 181 A.D.2d 990, 581 N.Y.S.2d 945). In any event, the mother was not aggrieved by the December 2008...