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Marshall v. Haas

State of New York Supreme Court, Appellate Division Third Judicial Department


June 17, 2010

IN THE MATTER OF ERIC MARSHALL, APPELLANT,
v.
SIERRA P. HAAS, RESPONDENT, ET AL., RESPONDENT. (AND OTHER RELATED PROCEEDINGS.)

The opinion of the court was delivered by: Malone Jr., J.

MEMORANDUM AND ORDER

Calendar Date: May 27, 2010

Before: Mercure, J.P., Peters, Spain, Malone Jr. and Kavanagh, JJ.

Appeal from an amended order of the Family Court of Broome County (Sullivan, J.), entered May 19, 2009, which, among other things, granted an application by respondent Sierra P. Haas, in proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner and respondent Sierra P. Haas (hereinafter respondent) are the parents of a daughter (born in 2005). In January 2007, Family Court issued a custody order upon stipulation directing that petitioner and respondent share joint custody of the child and establishing a visitation schedule for petitioner. Family Court thereafter dismissed the series of modification and violation petitions that followed, terminated the award of visitation contained in the January 2007 order and directed petitioner and respondent to work out their differences as to visitation. Upon petitioner's appeal to this Court, we reversed and remitted these matters for further proceedings, finding that Family Court abused its discretion in abruptly terminating petitioner's visitation (Matter of Marshall v Bradley, 59 AD3d 870 [2009]). Our decision, in turn, prompted respondent to commence a modification proceeding seeking sole custody of the child and to suspend petitioner's visitation. Thereafter, upon stipulation of the parties, Family Court awarded respondent sole custody of the child and established a visitation schedule for petitioner. Petitioner now appeals and his counsel seeks to be relieved of his assignment upon the ground that there are no non-frivolous issues to be raised on appeal.

As no appeal lies from an order entered on consent (see Matter of Mary UU. [Michael UU. - Marie VV.], 70 AD3d 1227, 1228 [2010]; Matter of Cheyenne QQ., 39 AD3d 1044, 1045 [2007]), this appeal must be dismissed. Accordingly, counsel's application to be relieved of his assignment is academic and need not be addressed (see Matter of Michaela PP. [Derwood PP.], 67 AD3d 1083, 1084 [2009]; Matter of Garcia v Carballo, 277 AD2d 453 [2000]).

Mercure, J.P., Peters, Spain and Kavanagh, JJ., concur.

ORDERED that the appeal is dismissed, without costs.

20100617

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