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In re Jordan

Supreme Court of New York, Third Department

July 27, 2017

In the Matter of ANDREA TERESS JORDAN, Appellant,
v.
ANDREW MICHAEL HORSTMEYER, Respondent.

          Calendar Date: February 21, 2017

          Law Offices of Jay A. Kaplan, Kingston (Jay A. Kaplan of counsel), for appellant.

          Andrew Michael Horstmeyer, Rhinecliff, respondent pro se.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

          MEMORANDUM AND ORDER

          Devine, J.

         Appeals (1) from an order of the Family Court of Ulster County (Stegmayer, S.M.), entered August 4, 2015, which, in a proceeding pursuant to Family Ct Act article 4, among other things, awarded counsel fees to petitioner, and (2) from an order of said court (McGinty, J.), dated October 19, 2015, which denied petitioner's objections to the counsel fee award.

         Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a son (born in 2009). The child is in the care of the mother and a support order issued in 2013 required the father to, among other things, reimburse the mother for 42% of her child care expenses.

         The mother filed a petition in 2015 alleging that the

         father had willfully violated the 2013 order in that regard and seeking an award of arrears and counsel fees. The Support Magistrate, upon the parties' stipulation, found the father to be in willful violation of the 2013 order and directed judgment against him for $7, 100 in arrears. The parties agreed that an award of counsel fees to the mother was called for but could not agree on the amount, instead agreeing to allow the Support Magistrate to determine the award on papers. The Support Magistrate thereafter ordered the father to pay the mother $9, 395.13 in counsel fees on an installment basis - less than the amount she had requested - and failed to direct that the fee award be reduced to a judgment as called for by the parties' stipulation. The mother appeals from both that order and the subsequent Family Court order denying her objections to it.

         The mother endeavors to appeal directly from the order of the Support Magistrate but, inasmuch as that order was superceded by the order of Family Court addressing her objections to it, she may not do so (see Family Ct Act § 439 [e]; Matter of Corry v Corry, 59 A.D.3d 618, 618 [2009]; Matter of Friedman v Horike, 26 A.D.3d 680, 681 n [2006]; Matter of Armstrong v Belrose, 9 A.D.3d 625, 626 n 2 [2004]). As for the mother's appeal from the order of Family Court, the record is devoid of proof that the order was entered and, as we have noted in a similar context, "appeals from orders that have not been entered are subject to dismissal" (Matter of Ryan v Nolan, 134 A.D.3d 1259, 1261 n [2015]) [1]. The record contains minimally adequate proof that the Family Court order was filed, however, and we "deem filing the equivalent of entry for purposes of jurisdiction and treat the filing date as the date of entry" (id.).

         Turning to the substance of the appeal from that order, Family Court denied the mother's objections to the Support Magistrate's order upon the ground that she could not challenge an order entered upon consent. While "[i]t is well settled that no appeal lies from an order issued on consent" (Matter of O'Sullivan v Schebilski, 138 A.D.3d 1170, 1172 [2016]; see Matter of Culton v Culton, 2 A.D.3d 1446, 1446 [2003]), that rule does not apply where the order "differs from or exceeds the consent" (Hatsis v Hatsis, 122 A.D.2d 111, 111 [1986]). The arguments advanced by the mother fall within the exception to the rule barring appeals from consent orders and, accordingly, Family Court's order must be reversed.

         The mother maintained before Family Court, and continues to argue, that the amount of the counsel fee award was arbitrary and capricious, and that the Support Magistrate erred in failing to issue a money judgment for that amount. With regard to the fee award, the parties' stipulation made clear that there was no "agreement concerning the counsel fees that [the mother was] entitled to be awarded." The parties instead stipulated that the Support Magistrate would "determine the amount of the counsel fee award" barring a later agreement, rendering the amount of the fee award an issue beyond the terms of the stipulation that the mother was free to object to (see e.g. Matter of Daniel W. v Kimberly W., 135 A.D.3d 1000, 1001 [2016]; Senior v Senior, 152 A.D.2d 784, 784-785 [1989]; cf. Matter of Barnes v Abrams, 124 A.D.3d 1000, 1001 [2015] [superfluous verbiage in consent order did not render it appealable]). The parties further stipulated that the mother was "entitled to a money judgment in the amount of... the counsel fee award and the costs of this proceeding, " rendering the failure of the Support Magistrate to issue that judgment an appealable deviation from the stipulation's terms.

         In light of the foregoing, Family Court was obliged to consider the merits of the mother's objections to the Support Magistrate's order notwithstanding the parties' stipulation, and the failure of Family Court to do so leaves us at a distinct disadvantage given the lack of explanation as to how the Support Magistrate calculated the fee award. We therefore remit so that Family Court may grapple with the mother's objections upon the merits and "(i) remand one or more issues of fact to the [S]upport [M]agistrate, (ii) make, with or without holding a new hearing, his or her own findings of fact and order, or (iii) deny the ...


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