Matter of McCoy v. McCoy

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 3, 2015 520271
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In the Matter of DAWN McCOY,
Appellant,
v MEMORANDUM AND ORDER
TIMOTHY McCOY,
Respondent.
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Calendar Date: October 22, 2015
Before: Peters, P.J., Garry, Rose and Clark, JJ.
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Ferrara & Sullivan, Monticello (John Ferrara of counsel),
for appellant.
Timothy McCoy, Hurleyville, respondent pro se.
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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
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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.
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ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court