Matter of McCoy v. McCoy , 19 N.Y.S.3d 792 ( 2015 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 3, 2015                   520271
    ________________________________
    In the Matter of DAWN McCOY,
    Appellant,
    v                                     MEMORANDUM AND ORDER
    TIMOTHY McCOY,
    Respondent.
    ________________________________
    Calendar Date:   October 22, 2015
    Before:   Peters, P.J., Garry, Rose and Clark, JJ.
    __________
    Ferrara & Sullivan, Monticello (John Ferrara of counsel),
    for appellant.
    Timothy McCoy, Hurleyville, respondent pro se.
    __________
    Clark, J.
    Appeal from an order of the Family Court of Sullivan County
    (McGuire, J.), entered May 7, 2014, which, in a proceeding
    pursuant to Family Ct Act article 4, partially granted
    respondent's objections to an order of a Support Magistrate.
    Petitioner (hereinafter the mother) and respondent
    (hereinafter the father) are the divorced parents of two children
    (born in 2000 and 2003). In February 2012, the father petitioned
    for a downward modification of his child support obligation as
    dictated by a prior order of support. Shortly thereafter, in
    June 2012, the mother commenced the instant matter and cross-
    petitioned seeking an increase in the amount of child support
    chargeable to the father. Following a hearing, the Support
    Magistrate issued two orders; the first dismissed the father's
    petition and the second granted the mother's petition and ordered
    -2-                  520271
    an increase in the father's biweekly child support obligation, as
    well as his pro rata share of the child care and unreimbursed
    medical expenses. Upon the father's timely objections to the
    order granting the mother's petition, Family Court agreed that
    the Support Magistrate failed to deduct a portion of the father's
    business expenses from his gross income. Thus, Family Court
    partially granted the father's objections and remanded the case
    to the Support Magistrate for a recalculation of his child
    support obligation. The mother appeals.
    The mother's appeal must be dismissed. But for very
    limited circumstances involving abuse or neglect, no appeal lies
    as of right from a nondispositional order of Family Court (see
    Family Ct Act §§ 439 [e]; 1112 [a]; Matter of Ameillia RR. [Megan
    SS.], 95 AD3d 1525, 1526 [2012]). Here, the order being appealed
    from is a nonfinal order that remanded the matter to the Support
    Magistrate for recalculation of the father's support obligation.1
    As the mother did not seek permission to appeal, the matter is
    not properly before us (see Family Ct Act § 1112 [a]).
    Furthermore, because no determination of support was made by
    Family Court, we decline to treat the mother's notice of appeal
    as a request for permission to appeal or to grant permission to
    appeal (see Matter of Harley v Harley, 129 AD2d 843, 844 [1987]).
    Peters, P.J., Garry and Rose, JJ., concur.
    1
    A subsequent order from the Support Magistrate
    determining the father's child support obligation appears in the
    record. However, the record does not indicate whether the mother
    objected to this order or has appealed from it.
    -3-                  520271
    ORDERED that the appeal is dismissed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 520271

Citation Numbers: 134 A.D.3d 1206, 19 N.Y.S.3d 792

Filed Date: 12/3/2015

Precedential Status: Precedential

Modified Date: 1/12/2023