KOZIOL v. KOZIOL (2009)

 As limited by his brief, in appeal No. 1 plaintiff appeals from those parts of a pendente lite order concerning his custody and support obligations.  Appeal No. 1 must be dismissed because, inter alia, the order in that appeal was rendered moot by the subsequent judgment of divorce issued in appeal No. 2 (see Kelly v. Kelly, 19 A.D.3d 1104, 1105-1106, 797 N.Y.S.2d 666, appeal dismissed 5 N.Y.3d 847, 805 N.Y.S.2d 547, 839 N.E.2d 901, rearg. denied and lv. dismissed in part and denied in part 6 N.Y.3d 803, 812 N.Y.S.2d 440, 845 N.E.2d 1270).  Appeal No. 2 also must be dismissed because plaintiff's contentions with respect to the judgment therein concern issues that were resolved by the parties' 2004 “Stipulation of Settlement” and 2005 “Modification Agreement” that were incorporated but not merged in the judgment of divorce.   Thus, plaintiff is not aggrieved by the judgment in appeal No. 2 (see CPLR 5511;  Gaudette v. Gaudette, 234 A.D.2d 619, 621, 650 N.Y.S.2d 880, appeal dismissed 89 N.Y.2d 1023, 657 N.Y.S.2d 594, 679 N.E.2d 1074, rearg. denied 90 N.Y.2d 845, 660 N.Y.S.2d 871, 683 N.E.2d 777, rearg. dismissed 90 N.Y.2d 937, 664 N.Y.S.2d 274, 686 N.E.2d 1369;  Hopkins v. Hopkins, 97 A.D.2d 457, 467 N.Y.S.2d 426).  “The proper remedy is a motion to set aside th[e] stipulation [and agreement]” (Hopkins, 97 A.D.2d at 458, 467 N.Y.S.2d 426).

 In appeal No. 3, plaintiff contends that, because of the “sensitive family matters” involved in this action, Supreme Court erred in refusing to amend the caption of the pleadings in order to protect the anonymity of the parties and their children.   We reject that contention.  “In matters involving child custody issues such relief should be granted only in the rare case, where, in considering the best interests of the children, there is a finding that their health and welfare would be protected, not their ‘privacy’ ” (Anonymous v. Anonymous, 27 A.D.3d 356, 361, 814 N.Y.S.2d 21), and plaintiff has failed to establish that this is one of those rare cases.   We conclude with respect to appeal No. 4 that the court properly denied plaintiff's post-divorce cross motion seeking “custody and/or parenting time.”   The judgment of divorce referred all future matters concerning custody and visitation to Family Court and, indeed, plaintiff commenced a proceeding seeking custody in Family Court (see generally Family Ct. Act § 651[a] ).

 Finally, contrary to plaintiff's contention, the court was not divested of jurisdiction in this divorce action based on the fact that the Attorney General was not placed on notice of plaintiff's constitutional challenges to certain sections of the Domestic Relations Law. Pursuant to CPLR 1012(b)(3), the court shall not consider the constitutionality of any state statute “unless proof of service of the notice required by [CPLR 1012] is filed with such court.”   Thus, it is the burden of the party challenging the state statute to place the Attorney General on notice of the constitutional challenge, and there is nothing in the record establishing that plaintiff provided such notice to the Attorney General or filed proof of service with the court.   The court therefore properly did not address the constitutionality of the statutes challenged by plaintiff (see Gina P. v. Stephen S., 33 A.D.3d 412, 415-416, 824 N.Y.S.2d 619).

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

MEMORANDUM: