Clark v. Clark

Appellate Division of the Supreme Court of New York

Clark v. Clark

85 A.D.3d 1350, 924 N.Y.S.2d 300

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 9, 2011

StatusPublished

Cited by8 cases

This text of 85 A.D.3d 1350 (Clark v. Clark) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clark v. Clark, 85 A.D.3d 1350, 924 N.Y.S.2d 300 (N.Y. Ct. App. 2011).

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Opinion

McCarthy, J.

Appeals (1) from an order of the Family Court of Schenectady County (Ellis, S.M.), dated May 11, 2010, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior order of support, and (2) from an order of said court (Powers, J.), entered June 16, 2010, which ordered respondent to undergo a psychiatric evaluation.

A Support Magistrate granted petitioner’s application to find respondent in willful violation of a prior order of support, recommended that he be incarcerated and referred the matter to Family Court for confirmation (see Family Ct Act § 439 [a]; see also § 454 [3]). When he appeared in court upon that referral, respondent raised his voice, persisted in attempting to make the court review a prior order and refused to stop speaking when directed to do so by the court, a court officer and his own attorney. The court ordered that respondent submit to a psychiatric evaluation and adjourned the proceeding. Respondent appeals from the Support Magistrate’s order and Family Court’s order requiring an evaluation.

A Support Magistrate’s order finding a willful violation and recommending incarceration is not a final order and “shall have no force and effect until confirmed by a judge of the court” (Family Ct Act § 439 [a]). Hence, such an order is not appeal-able as of right (see Family Ct Act § 1112 [a]; Matter of Huard v Lugo, 81 AD3d 1265,1266 [2011], Iv denied 16 NY3d 710 [2011]; Matter of Dakin v Dakin, 75 AD3d 639, 640 [2010], Iv dismissed 15 NY3d 905 [2010]; see also Anderson v Harris, 68 AD3d 472, 474 [2009]). Family Court’s order that respondent submit to a psychiatric evaluation is similarly not a final order of disposition from which an appeal would lie as of right, and respondent has not sought leave to appeal (see Family Ct Act § 1112 [a]; Matter of Chang v Conway, 302 AD2d 459 [2003]; Matter of Francis M. v Anne M., 279 AJD2d 279, 280 [2001]; Dillard v Dillard, 48 AD2d 666 [1975]; Firestone v Firestone, 44 AD2d 671, 672 [1974]). Accordingly, the appeals from both orders must be dismissed.

[1351]*1351Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the appeals are dismissed, without costs.

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McCarthy, J.

Appeals (1) from an order of the Family Court of Schenectady County (Ellis, S.M.), dated May 11, 2010, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 4, to hold respondent in willful violation of a prior order of support, and (2) from an order of said court (Powers, J.), entered June 16, 2010, which ordered respondent to undergo a psychiatric evaluation.

A Support Magistrate granted petitioner’s application to find respondent in willful violation of a prior order of support, recommended that he be incarcerated and referred the matter to Family Court for confirmation (see Family Ct Act § 439 [a]; see also § 454 [3]). When he appeared in court upon that referral, respondent raised his voice, persisted in attempting to make the court review a prior order and refused to stop speaking when directed to do so by the court, a court officer and his own attorney. The court ordered that respondent submit to a psychiatric evaluation and adjourned the proceeding. Respondent appeals from the Support Magistrate’s order and Family Court’s order requiring an evaluation.

A Support Magistrate’s order finding a willful violation and recommending incarceration is not a final order and “shall have no force and effect until confirmed by a judge of the court” (Family Ct Act § 439 [a]). Hence, such an order is not appeal-able as of right (see Family Ct Act § 1112 [a]; Matter of Huard v Lugo, 81 AD3d 1265,1266 [2011], Iv denied 16 NY3d 710 [2011]; Matter of Dakin v Dakin, 75 AD3d 639, 640 [2010], Iv dismissed 15 NY3d 905 [2010]; see also Anderson v Harris, 68 AD3d 472, 474 [2009]). Family Court’s order that respondent submit to a psychiatric evaluation is similarly not a final order of disposition from which an appeal would lie as of right, and respondent has not sought leave to appeal (see Family Ct Act § 1112 [a]; Matter of Chang v Conway, 302 AD2d 459 [2003]; Matter of Francis M. v Anne M., 279 AJD2d 279, 280 [2001]; Dillard v Dillard, 48 AD2d 666 [1975]; Firestone v Firestone, 44 AD2d 671, 672 [1974]). Accordingly, the appeals from both orders must be dismissed.

[1351]*1351Spain, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the appeals are dismissed, without costs.

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85 A.D.3d 1350, 924 N.Y.S.2d 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-clark-nyappdiv-2011.

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