SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
77
CAF 15-01210
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF SANDRA L. COUGHLIN,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
KELLY J. COUGHLIN, RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)
HOPPE & ASSOCIATES, INC., BUFFALO (BERNADETTE M. HOPPE OF COUNSEL),
FOR PETITIONER-APPELLANT.
DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT-RESPONDENT.
DAVID E. BLACKLEY, ATTORNEY FOR THE CHILD, LOCKPORT.
Appeal from an order of the Family Court, Erie County (Lisa Bloch
Rodwin, J.), entered July 2, 2015 in a proceeding pursuant to Family
Court Act article 6. The order dismissed the petition alleging a
violation of an unspecified order with prejudice.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by providing that the petition is
dismissed without prejudice, and as modified the order is affirmed
without costs.
Memorandum: Petitioner mother appeals from three orders of
Family Court that, respectively, dismissed a petition seeking
modification of the custody provisions in the judgment of divorce
(appeal No. 2), dismissed a petition alleging a violation of an
unspecified order (appeal No. 1), and dismissed a petition alleging a
violation of an order that is not contained in the record on appeal
(appeal No. 3). As limited by her brief, the mother contends that
Family Court erred in dismissing each of those petitions with
prejudice. We agree.
Respondent father correctly concedes that the orders in appeal
Nos. 1 and 3 conflict with Family Court’s decision, which expressly
provides that the violation petitions were dismissed without
prejudice. Because the decision controls where, as here, it conflicts
with the order, we modify the orders in appeal Nos. 1 and 3 to conform
to the decision (see Matter of Esposito v Magill, 140 AD3d 1772, 1773,
lv denied 28 NY3d 904).
With respect to appeal No. 2, the court determined that the
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CAF 15-01210
petition was facially insufficient to allege a change of circumstances
warranting a change of custody. Thus, because petitioner has not had
a full and fair opportunity to litigate her allegations that the
custody provisions in the judgment of divorce should be modified, the
court erred in dismissing the petition with prejudice (cf. Stiles v
Graves, 143 AD3d 1215, 1216-1217; see generally Landau, P.C. v
LaRossa, Mitchell & Ross, 11 NY3d 8, 13). We therefore modify the
order in appeal No. 2 accordingly.
Entered: February 10, 2017 Frances E. Cafarell
Clerk of the Court