Myers v. Tracy

Mar 16, 2012
Versions:93 A.D.3d 1213
939 N.Y.S.2d 903

It is hereby ordered that said appeal is unanimously dismissed without costs.

Memorandum: Respondent father appeals from an order confirming the Support Magistrate‘s determination that he willfully failed to obey a child support order and imposing a suspended sentence of 90 days in jail. The Support Magistrate‘s finding of a willful violation of the support order was based upon admissions made by the father in open court when the parties entered into a settlement agreement. Because the father consented to the order confirming the Support Magistrate‘s determination, including his recommended sentence, the appeal must be dismissed. It is well settled that “[n]o appeal lies from an order entered by consent upon the stipulation of the appealing party” (Matter of Starz v Tissiera, 206 AD2d 432 [1994]; see Matter of Adney v Morton, 68 AD3d 1742 [2009]; Matter of Culton v Culton, 2 AD3d 1446 [2003]). In any event, we note that the father‘s sole contention on appeal that he was denied effective assistance of counsel is based largely on matters dehors the record and thus should be raised by way of a motion to vacate the order in Family Court (see generally Matter of Commissioner of Social Servs. of Rensselaer County [Faresta] v Faresta, 11 AD3d 750 [2004]). Present—Centra, J.P., Carni, Lindley, Sconiers and Martoche, JJ.