Opinion
No. 1007 CAF 21-01667
02-03-2023
IN THE MATTER OF JOANNE C. SMITH, PETITIONER-APPELLANT, v. DANIEL L. BALDWIN, RESPONDENT-RESPONDENT.
STEPHANIE R. DIGIORGIO, UTICA, FOR PETITIONER-APPELLANT. SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
STEPHANIE R. DIGIORGIO, UTICA, FOR PETITIONER-APPELLANT.
SUSAN B. MARRIS, MANLIUS, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, BANNISTER, AND MONTOUR, JJ.
Appeal from an order of the Family Court, Oswego County (Allison J. Nelson, J.), entered July 6, 2021 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, awarded respondent sole legal and physical custody of the subject children.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: In this Family Court Act article 6 proceeding, petitioner mother appeals from an order that, inter alia, awarded respondent father sole custody of the subject children, with therapeutic visitation to the mother. We take judicial notice of the fact that, subsequent to the entry of the order on appeal, Family Court entered an order upon the consent of the parties that, inter alia, ordered that sole custody of the subject children would remain with the father and further ordered that the court "relinquishe[d] jurisdiction to Fulton County in the State of Georgia" (see generally Matter of Allison v Seeley-Sick, 199 A.D.3d 1490, 1491 [4th Dept 2021]; Matter of Salgado v Santiago, 178 A.D.3d 1399, 1400 [4th Dept 2019]). Even assuming, arguendo, that not all of the provisions of the order on appeal were superseded by the subsequent order (see Allison, 199 A.D.3d at 1491), we conclude that the court nonetheless divested itself of jurisdiction in a nonappealable consent order (see CPLR 5511; Matter of Kendall N. [Angela M.], 188 A.D.3d 1688, 1688 [4th Dept 2020], lv denied 36 N.Y.3d 908 [2021]), and we "cannot now make a determination... that would directly affect any interest or right of the parties" (Matter of Richard Y. v Victoria Z., 198 A.D.3d 1200, 1202 [3d Dept 2021]; see generally Domestic Relations Law §§ 76-a [1]; 76-f). The appeal must therefore be dismissed as moot.