Chenango County Department of Probation v. Mundy

24 A.D.3d 1129, 805 N.Y.S.2d 859

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 2005
• Status: Published

Opinion

Kane, J.

Appeal from an order of the Family Court of Chenango County (Campbell, J.), entered November 19, 2004, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 4, to find respondent in violation of the terms of his probation and sentenced him to a six-month jail term.

Family Court (Campbell, J.) issued an order placing respondent on probation after the court (Sullivan, J.) had previously found that he willfully violated an order of support. In a companion case appealing that order, we are withholding decision and remitting the matter for a determination on respondent’s motion to dismiss for lack of personal jurisdiction (Matter of Sutton v Mundy, 24 AD3d 1128 [2005] [decided herewith]). If the court lacked jurisdiction to enter the original support violation order, the order is not merely erroneous but void and respondent cannot be punished for failing to comply with that order (see Matter of Bickwid v Deutsch, 229 AD2d 533, 534-535 [1996], lv denied 89 NY2d 802 [1996]; Matter of Village of St. Johnsville v Triumpho, 220 AD2d 847, 848 [1995], lv denied 87 NY2d 809 [1996]; see also People v Malone, 3 AD3d 795, 797 [2004], lv denied 2 NY3d 763 [2004]). Therefore, we must withhold this case until Family Court renders a determination in the companion case.

Mercure, J.P., Peters, Mugglin and Rose, JJ., concur. Ordered that the decision is withheld pending the determination of the Family Court of Chenango County in Matter of Sutton v Mundy (24 AD3d 1128 [2005] [decided herewith]).