George A. v. Ivett A.

14 Misc. 3d 622
CourtNew York Supreme Court
DecidedDecember 5, 2006
StatusPublished
Cited by1 cases

This text of 14 Misc. 3d 622 (George A. v. Ivett A.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George A. v. Ivett A., 14 Misc. 3d 622 (N.Y. Super. Ct. 2006).

Opinion

OPINION OF THE COURT

Ellen Gesmer, J.

In this postjudgment matrimonial case, the plaintiff (father) moved by order to show cause for, among other things, an order consolidating into this action a Family Court proceeding in which he and his mother, Alice A. (grandmother), are charged with abusing and neglecting the parties’ daughter Lissette. Defendant Ivett A. (mother) and the Administration for Children’s Services (ACS) opposed the motion. On the return date of the motion, the court granted the father’s motion and issued an order consolidating all pending Family Court proceedings, including but not limited to the neglect case, with this action. As promised, the court is issuing this opinion to explain the reasons for that order.

Procedural History

The parties were married on November 7, 1984. They had two children, Helen, born in 1988, and Lissette, born in 1994. The father commenced this action for divorce in February 2002. On May 22, 2002, the parties entered into a stipulation which resolved all issues of child custody, visitation and support. In the stipulation, which was so-ordered by the court, the parties agreed that they would have joint legal custody of the children, and that the father would have sole physical custody. They further agreed that the mother, who had moved to Florida by then, was to have the children visit with her in Florida for six weeks each summer and for two weeks during school vacations. She was also to have overnight visits when she was in New York.

On March 4, 2004, this court signed an order to show cause directing the mother to return Helen to the father’s custody, and setting a date for a hearing on whether the mother should be held in contempt for failing to return Helen after a visit. The mother cross-moved for various relief. After a hearing, this court entered an order, dated July 13, 2004, continuing the award of sole physical custody to the father. This court retained jurisdiction over Lissette’s custody.

In November 2004, the court signed another order to show cause in which the father sought relief based on the mother’s alleged failure to return the children after a period of visitation.

A judgment of divorce, which incorporated the stipulation, was signed on November 15, 2004 and was entered on May 22, 2006.

[624]*624On or about July 21, 2006, Lissette went to Florida to visit the mother for the six-week period provided in the stipulation. Lissette did not return on September 1, and the mother did not provide the father with any information as to when she would return. The father then brought on a motion by order to show cause to hold the mother in contempt, to give him sole custody of Lissette and for other relief. The order to show cause, signed on September 21, 2006, also directed the mother to return Lissette forthwith. The return date of the order to show cause was October 11, 2006.

On October 4, 2006, ACS filed a petition in the Family Court alleging that the father and his mother had committed acts against Lissette which constituted abuse under article 10 of the Family Court Act. On the same day, the Family Court directed the temporary removal of Lissette from her father’s home, and ordered that she be placed in the custody of ACS.

On October 5, 2006, the mother filed a cross motion in this court for an order of custody of Lissette, and for transfer of the child protective proceeding to Florida or, in the alternative, for an order transferring custody of Lissette to the mother’s sister, pending determination of the article 10 proceeding.

On October 11, 2006, all parties, except the grandmother, appeared in the Supreme Court on the father’s order to show cause and the mother’s cross motion. At that time, the father asked that the court sign a second order to show cause, seeking an order consolidating the Family Court proceeding into this action and an award of attorneys’ fees. The court signed the order to show cause, and all parties then present accepted service. The court set a schedule for the submission of opposition papers and reply papers, and set argument for November 13, 2006. ACS and the mother submitted papers in opposition. The Law Guardian neither appeared at argument nor submitted papers in opposition. The grandmother appeared on November 13, waived service of the order to show cause, and filed an affidavit in support of the motion for consolidation.

On November 13, the mother also filed a motion to enforce various aspects of the equitable distribution award, and for other relief.

Motion to Consolidate

The father argues that this court has jurisdiction to consolidate the article 10 proceeding with this divorce action, citing Paul B. S. v Pamela J. S. (70 NY2d 739, 741 [1987]). Initially, [625]*625ACS, the Law Guardian and the mother all questioned the court’s authority to exercise jurisdiction over the article 10 proceeding. In their opposition papers, both ACS and the mother abandoned this position and conceded that the court has jurisdiction to consolidate the Family Court matter into this action. In fact, that position is compelled by the decision by the Court of Appeals in Paul B. S. In that case, the Court of Appeals affirmed a Supreme Court order which consolidated a child abuse case with a pending divorce case and held unequivocally that “Supreme Court’s concurrent jurisdiction over child abuse proceedings is unaffected by the grant of ‘exclusive original jurisdiction’ to Family Court over such proceedings” (70 NY2d at 741, citing NY Const, art VI, § 7; Family Ct Act §§ 114, 1013; Kagen v Kagen, 21 NY2d 532, 538 [1968]). Consequently, the question before this court is not whether it has the authority to consolidate the cases, but whether it should exercise its discretion to do so (CPLR 602 [b]; see also Geller v Geller, 247 AD2d 364 [2d Dept 1998] [abuse of discretion for Supreme Court to deny a motion to remove and consolidate a Family Court proceeding with the postjudgment proceedings pending in the Supreme Court matrimonial action]).

Both ACS and the mother suggest that the proper course would be for the Family Court to hold a fact-finding hearing, and then for either the Family Court or the Supreme Court to hold a combined disposition and custody hearing. The mother argues that Paul B. S. supports her position that the Family Court proceeding should be consolidated, if at all, only after the Family Court completes the fact-finding hearing. The court disagrees, and finds instead that Paul B. S. supports the immediate consolidation of the Family Court proceeding into this one. That case began in September 1985, when Paul B. S. commenced a matrimonial action in Supreme Court (see 127 AD2d 491, 492 [1st Dept 1987]). The Supreme Court held lengthy hearings on the parties’ cross motions for custody. On December 4, 1985, before the custody hearings were completed, ACS removed the parties’ child. The next day, ACS filed a neglect petition against both parents in Family Court and began a hearing on the necessity for the removal of the child (id.). On December 9, acting on the father’s application, the Supreme Court consolidated the Family Court proceeding and stayed the Family Court from taking any further action. The next day, ACS sought and obtained an interim stay of the Supreme Court order. The Family Court then proceeded with a [626]*626fact-finding hearing (id. at 493).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Figueroa v. Rivera
21 Misc. 3d 835 (Poughkeepsie City Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
14 Misc. 3d 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-a-v-ivett-a-nysupct-2006.