Mace v. Miller

93 A.D.3d 1086, 940 N.Y.S.2d 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 2012
• Status: Published

Opinion

McCarthy, J.

Appeal from an order of the Family Court of Warren County (Breen, J.), entered August 18, 2010, which, among other things, partially granted petitioner’s application, in four proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.

Pursuant to a prior order of custody, petitioner (hereinafter the mother) and respondent (hereinafter the father) shared joint legal custody of their daughter, the father had primary physical custody and the mother had visitation on alternate weekends (see Matter of Miller v Mace, 74 AD3d 1442, 1442 [2010], lv denied 15 NY3d 705 [2010]). Following a hearing on petitions filed by both parties, Family Court, among other things, increased the mother’s visitation to three weekends per month. The mother appeals.

We dismiss the appeal as moot. In May 2011, while the parties were in Family Court on a subsequent petition, they entered into a stipulation modifying their custody and visitation arrangement “in full satisfaction of all pending petitions and appeals . . . involving the parties and the subject child.” The stipulation stated that it “shall supercede all prior orders.” By the express terms of the stipulation, which was signed by the parties and counsel and so-ordered by Family Court, the mother waived her right to continue this appeal. Additionally, because the stipulation resulted in a new order that superceded the order being appealed, this appeal is moot (see Matter of Biasutto v Biasutto, 75 AD3d 671, 672 [2010]; Matter of Hall v Shannon, 59 AD3d 825 [2009]).

Spain, J.P., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.