Wilder v. Wilder

55 A.D.3d 1341, 865 N.Y.S.2d 451

Opinion

Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), entered May 22, 2007 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition seeking to modify a custody order.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Cattaraugus County, for compliance with 22 NYCRR 202.44.

Memorandum: Petitioner mother appeals from an order of Family Court that adopted the report of a judicial hearing officer (JHO) recommending dismissal of the mother’s petition seeking to modify an existing custody order. We agree with the mother that the court erred in adopting the report of the JHO without providing her with notice of the filing of the report or an opportunity to object to it (see 22 NYCRR 202.44 [a]; Jones v Jones, 30 AD3d 741, 742 [2006]; see also Sidoti v Degliuomini, 10 AD3d 396 [2004]). Contrary to the contention of respondent father, the mother did not explicitly or implicitly consent to the referral of the matter to the JHO for a fined determination and, indeed, the JHO did not issue a final determination on the mother’s petition. The JHO explicitly acknowledged that the matter had been referred to him to hear and report, and he concluded his report with only a recommendation. Present— Centra, J.E, Lunn, Peradotto, Green and Pine, JJ.