Muller v. Muller

90 A.D.3d 1165, 933 N.Y.2d 914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2011
• Status: Published

Opinion

Malone Jr., J.

In September 2009, petitioner commenced this proceeding seeking to find respondent in willful violation of a prior order of support, alleging, among other things, that respondent had failed to make any child support payments to her in more than one year and owed her more than $12,000 in child support arrears. After a Support Magistrate found that respondent had willfully violated the prior order of support, Family Court confirmed that finding in an order issued in January 2010 and the matter was adjourned for a determination of an appropriate penalty. Respondent did not appeal. Thereafter, Family Court issued an order in April 2010 committing respondent to a 90-day term of incarceration. Respondent appeals from that order.

All of respondent’s arguments relate to the January 2010 order finding him to be in willful violation of the prior order of child support. However, none of those arguments are properly before this Court because respondent did not appeal from the January 2010 order in which that finding was made (see Matter of St. Lawrence County Dept. of Social Servs. v Pratt, 80 AD3d 826, 826 [2011], lv denied 16 NY3d 712 [2011]; Matter of Clark v Clark, 61 AD3d 1274, 1275 [2009], lv denied 13 NY3d 702 [2009]). Instead, respondent appealed only from the April 2010 order that committed him to a term of incarceration. Inasmuch as that term of incarceration has expired, this appeal must be dismissed as moot (see Matter of Larrier v Williams, 84 AD3d 805, 806 [2011]; Matter of Franklin County Dept. of Social Servs. v Durant, 54 AD3d 1139, 1140 [2008]; Matter of St. Lawrence County Dept. of Social Servs. v Pratt, 24 AD3d 1050 [2005], lv denied 6 NY3d 713 [2006]).

Spain, J.E, Rose, Stein and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.