GUCK, JASON R. v. PRINZING, MALINDA A. ( 2012 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1085
CAF 12-00067
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
IN THE MATTER OF JASON R. GUCK,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
MALINDA A. PRINZING AND CARL E. PRINZING,
RESPONDENTS-APPELLANTS.
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IN THE MATTER OF PAUL G. GUCK,
PETITIONER-RESPONDENT,
V
MALINDA A. PRINZING AND CARL E. PRINZING,
RESPONDENTS-APPELLANTS.
(APPEAL NO. 2.)
TYSON BLUE, MACEDON, FOR RESPONDENTS-APPELLANTS.
ELIZABETH A. SAMMONS, ATTORNEY FOR THE CHILDREN, WILLIAMSON, FOR DAVID
P. AND ALYSSA P.
Appeal from an order of the Family Court, Wayne County (Daniel G.
Barrett, J.), entered January 4, 2012. The order adjudged that
respondent Malinda A. Prinzing is in civil contempt and sentenced her
to 60 days in jail.
It is hereby ORDERED that said appeal by respondent Carl E.
Prinzing is unanimously dismissed and the order is otherwise affirmed
without costs.
Memorandum: In appeal No. 1, respondent parents appeal from an
order that awarded visitation of the parents’ two children to the
mother’s teenage son and the mother’s parents, and in appeal No. 2
they appeal from an order that sentenced the mother to 60 days in jail
for civil contempt based upon a prior finding that she willfully
failed to obey the visitation order. We note at the outset that,
because the father is not aggrieved by the contempt order against the
mother, his appeal from the order in appeal No. 2 is dismissed (see
CPLR 5511). The parents’ sole contention in appeal No. 1 and the
mother’s sole contention in appeal No. 2 is that Domestic Relations
Law § 72, which allows grandparents to commence a special proceeding
seeking visitation with infant grandchildren, is unconstitutional as
applied to this case because the subject children’s family is intact
-2- 1085
CAF 12-00067
and properly functioning. Because the parents did not raise that
contention in Family Court, it is unpreserved for our review (see
Melahn v Hearn, 60 NY2d 944, 945; Matter of State of New York v
Campany, 77 AD3d 92, 101, lv denied 15 NY3d 713). In fact, the
parents initially consented to an order providing for grandparent
visitation, and they acknowledged in open court that it was in the
children’s best interests to spend time with their grandparents, with
whom the children had previously resided. By consenting to the
visitation order, the parents waived any challenge to the
applicability of Domestic Relations Law § 72.
Entered: November 16, 2012 Frances E. Cafarell
Clerk of the Court