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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.
SUPREME COURT OF THE STATE
OF NEW YORK
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.
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