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Appeal of Relocation to California

New York State's Appellate Division rejected the arguments John had made in his appeal.  Soon we will be updating this page with complete details as the appeal moves forward to New York State's highest Court, the Court of Appeals.  For now we have included the decision of the Appellate Division below.  Click here for the actual order.

You can form your own opinion.  To read the Appellate briefs, including a complete trial transcript, click here.   We think you will find that: 

  • The couple was not acrimonious.  John wanted to share an equal relationship with Domenic with his former spouse, but she did not value him as a parent.  It's unfortunate that the system appears to reward uncompromising behavior.

  • Credibility was not really an issue.   Both spouses gave similar descriptions of events, but just differed in how they valued the other parent's importance. 

  • The Constitutional issue of jury trial was preserved.  This will be important as the appeal goes forward to New York's highest Court, the Court of Appeals. 

Appellate Division, Fourth Judicial Department

(1250) CAF 99-1275. (Onondaga Co.) -- MATTER OF ADRIANNE PHILLIPSON, PETITIONER-RESPONDENT-RESPONDENT, V JOHN MURTARI, RESPONDENT-PETITIONER-APPELLANT. -- Order unanimously affirmed without costs. Memorandum: Respondent contends that Family Court erred in denying his cross petition seeking joint custody. We disagree. The court was "in the best position to evaluate the character and credibility of the witnesses" (Matter of Paul C. v Tracy C., 209 AD2d 955, 956). The record supports the court's determination that, based upon the parties' acrimonious relationship and inability to communicate in a civil manner, a change from sole custody to joint custody was not warranted (see, Matter of Dube v Dube, 259 AD2d 1041; see also, Braiman v Braiman, 44 NY2d 584, 589-590) . The court also properly determined that petitioner's relocation was in the best interests of the child (see, Matter of Tropea v Tropea, 87 NY2d 727, 741).
There is no merit to the contention of respondent that he was denied due process by the court's denial of his request for a jury trial.  Subject to exceptions not present here (see, Domestic Relations Law 143, 173) , matrimonial actions and proceedings incidental thereto are masters of equity for which "there is no right to a jury trial and thus [they] are not within the constitutional guarantees of a right to a jury trial" (Mandel v Mandel, 109 Misc 2d 1, 2, citing Reubens v Joel, 13 NY 488, and Powell v Waldron, 89 NY 328).  We have examined respondent's remaining contention and conclude that it is without merit. (Appeal from Order of Onondaga County Family Court, Bersani, J. -Custody.) PRESENT: PINE, J. P., WISNER, HURLBUTT, SCUDDER AND BALIO, JJ. (Filed Sept. 29, 2000.)

  • 11/1/2000 - A jurisdictional statement was sent to the Court of Appeals.  The Court of Appeals does not have to hear every appeal, the jurisdictional statement allows the Court of Appeals to determine if it should hear the appeal. 
  • 11/28/2000 - John received a letter from the Clerk of the Court of Appeals requesting more information.   John sent a reply from jail answering the Clerk's questions and indicating his desire to pursue the appeal.  The Court of Appeals does not have to hear every appeal, right now we are hoping they will find sufficient merit in the case for it to go forward.  John urgently needs the assistance of an attorney who would be willing to represent him and our group's goals in this matter.