Barone v. Milks

Dec 21, 2001
Versions:289 A.D.2d 931
734 N.Y.S.2d 763
2001 N.Y. App. Div. LEXIS 12409

Order unanimously affirmed without costs. Memorandum: Sara Milks contends for the first time on appeal that Family Court erred in appointing its *932confidential law clerk as Referee to report in this custody dispute between parents who were never married. We agree with Milks that the appointment was in violation of CPLR 4312 (3) and that the exception set forth in CPLR 4312 (5) does not apply because this is not a matrimonial proceeding, nor is it uncontested. The error, however, does not require reversal. “[I]t is well settled that a party may not challenge the qualifications of a Referee for the first time on appeal” (Matter of Scinta v Scinta, 129 AD2d 262, 265). In any event, “[t]he submission of an issue to a Referee affects only the mode of trial, not the jurisdiction of the court,” and thus we conclude that Milks waived any objection to the qualifications of the Referee by submitting to a hearing before her (Matter of Scinta v Scinta, supra, at 265). Because Family Court has the same powers as Supreme Court with respect to proceedings concerning the custody and visitation of minors (see, Family Ct Act § 651 [b]), we conclude that the rationale set forth in Scinta, a case commenced in Supreme Court, applies equally to this Family Court custody case.

In addition, Milks contends that the Referee and the court erred in relying on inadmissible hearsay in the Law Guardian’s report, which was made part of the record by stipulation of the parties. Although that report contains inadmissible hearsay, there is no indication that the Referee or the court relied on such hearsay (see, Matter of Liza C. v Noel C., 207 AD2d 974). The testimony at the hearing supports the conclusion that joint custody with physical placement with Wayne Barone, the child’s father, is in the child’s best interests. (Appeal from Order of Chautauqua County Family Court, Claire, J. — Custody.) Present — Pine, J. P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.