Renzulli v. McElrath

286 A.D.2d 335, 728 N.Y.S.2d 783, 2001 N.Y. App. Div. LEXIS 7852

Opinion

In a proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondent, Terrence J. McElrath, a Judge of the Family Court, Richmond County, from exercising jurisdiction over a child custody proceeding entitled Matter of Renzulli v Renzulli, pending in the Family Court, Richmond County, the petitioner appeals from a judgment of the Supreme Court, Richmond County (Maltese, J.), dated May 31, 2000, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The appellant commenced a proceeding in the Supreme Court, Richmond County, pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondent from exercising jurisdiction over a proceeding brought by her former husband to obtain custody of their two children. The appellant and her former husband were previously divorced by an amended supplemental judgment of the Supreme Court, Richmond County, dated June 25, 1997. The Supreme Court denied the petition and dismissed the proceeding, finding that the Family Court had jurisdiction over the custody proceeding. We agree.

While the amended supplemental judgment of divorce addressed issues such as child support and equitable distribution, it did not contain an express provision governing child custody or visitation. Furthermore, it did not contain any language retaining exclusive jurisdiction in the Supreme Court or concerning its future enforcement. Under these circumstances, the Supreme Court properly concluded that the Family Court had concurrent jurisdiction with the Supreme Court over the issue of child custody (see, Family Ct Act §§ 651, 652; Metzger v Metzger, 133 AD2d 524; Matter of Michener v Metcalf, 99 AD2d 925; Matter of Merrill I.S. v Joel S., 92 Misc 2d 92).

The petitioner’s remaining contentions are without merit. S. Miller, J. P., H. Miller, Schmidt and Cozier, JJ., concur.