Moore v. Moore , 33 N.Y.S.3d 917 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 7, 2016 520597
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KATARZYNA MOORE,
Respondent,
v MEMORANDUM AND ORDER
MICHAEL B. MOORE,
Appellant.
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Calendar Date: May 27, 2016
Before: McCarthy, J.P., Rose, Devine, Clark and Aarons, JJ.
__________
Briggs Norfolk, LLP, Lake Placid (Matthew D. Norfolk of
counsel), for appellant.
Susan Patnode, Rural Law Center of New York, Castleton
(Michael J. Hutter of counsel), for respondent.
__________
Aarons, J.
Appeal from an order of the Family Court of Essex County
(Heussi, S.M.), entered October 24, 2014, which, upon referral of
the matter from Supreme Court, determined defendant's child
support obligation and awarded maintenance to plaintiff.
In the instant divorce action, plaintiff (hereinafter the
wife) and defendant (hereinafter the husband) initially
stipulated to a temporary order directing that the husband would
pay monthly child support in the amount of $2,000 and monthly
spousal maintenance in the amount of $1,000. The wife
subsequently moved for a pendente lite award of counsel fees and
the husband cross-moved for a downward modification of his child
support and spousal maintenance obligations. Supreme Court,
pursuant to Family Ct Act § 464 (a), referred the husband's cross
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motion to Family Court for a determination. A hearing was held
before a Support Magistrate, who, in October 2014, issued an
order determining the husband's child support obligation to be
$1,923 per month and his spousal maintenance obligation to be
$1,000 per month.
The husband's appeal from the Support Magistrate's October
2014 order must be dismissed. No appeal lies from an order of a
Support Magistrate where the complaining party failed to file
timely objections thereto (see Matter of Rooney v Rahman, 132
AD3d 1002, 1002 [2015]; Matter of Glenda C. v Wayne C., 100 AD3d
430, 430 [2012]; Matter of Dambrowski v Dambrowski, 8 AD3d 913,
914 [2004]). Here, it is undisputed that the husband did not
file any objections with respect to the October 2014 order. The
husband instead filed a notice of appeal in response to the
Support Magistrate's directive in the order stating, "AN APPEAL
AS OF RIGHT SHALL BE TAKEN BY FILING THE ORIGINAL NOTICE OF
APPEAL WITH THE CLERK OF THE FAMILY COURT IN WHICH THE ORDER WAS
MADE AND FROM WHICH THE APPEAL IS TAKEN." Contrary to the
husband's argument, his reliance and ensuing actions taken based
on this erroneous directive do not confer jurisdiction upon this
Court (see Brownstein v County of Westchester, Dept. of Parks,
Recreation & Conservation, 51 AD2d 792, 792 [1976]).
McCarthy, J.P., Rose, Devine and Clark, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court