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In re Brown

Supreme Court of New York, Fourth Department

July 5, 2013

IN THE MATTER OF PAMELA A. BROWN, PETITIONER-RESPONDENT,
v.
RALPH PATTERSON, RESPONDENT-APPELLANT. (APPEAL NO. 1.)

Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), entered July 20, 2011 in a proceeding pursuant to Family Court Act article 6. The order directed that respondent's visitation with the children shall be supervised.

DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.

SANDRA FISHER SWANSON, ATTORNEY FOR THE CHILDREN, AUGUSTA, GEORGIA.

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the matter is remitted to Family Court, Chautauqua County, for further proceedings on the amended petition in accordance with the following Memorandum: We agree with respondent-appellant (respondent) in appeal Nos. 1 and 2 that Family Court erred in relieving his assigned counsel after the modification petition, which sought full legal custody of the three children at issue, was amended to seek only a modification of respondent's visitation (amended petition). While this appeal was pending, we held that respondents in visitation proceedings are entitled to assigned counsel (see Matter of Wright v Walker, 103 A.D.3d 1087, 1088, citing Matter of Samuel v Samuel, 33 A.D.3d 1010, 1010-1011; Matter of Wilson v Bennett, 282 A.D.2d 933, 934). We therefore reverse the orders in appeal Nos. 1 and 2, pursuant to which respondent was afforded only supervised visitation with his two biological sons, and only supervised visitation with his stepson, respectively, and we remit the matter in each appeal to Family Court for further proceedings on the amended petition. In view of our determination, we dismiss as academic respondent's appeal from the order in appeal No. 3, which denied respondent's subsequent motion to vacate the orders in appeal Nos. 1 and 2 (see Carlson v Carlson, 248 A.D.2d 1026, 1028).

Finally, respondent's contention with respect to the court's dismissal of his violation petition is not properly before us inasmuch as " [n]o appeal lies from a mere decision' " (Meenan v Meenan, 103 A.D.3d 1277, 1278; see Kuhn v Kuhn, 129 A.D.2d 967, 967; see also CPLR 5512 [a]).


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