                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 7, 2016                     519749
______________________________________

In the Matter of DENISE L.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

MICHAEL L.,
                    Appellant.

(And Three Other Related Proceedings.)
______________________________________


Calendar Date:   February 16, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

                             __________


     Jeffrey L. Zimring, Albany, for appellant.

     Cheryl L. Sovern, Clifton Park, for respondent.

     Mary Cosgrove Militano, Scotia, attorney for the children.

                             __________


Devine, J.

      Appeal from an order of the Family Court of Saratoga County
(Jensen, J.), entered May 5, 2014, which, among other things,
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, for custody of the parties' children.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the married parents of a daughter
(born in 2003) and a son (born in 2001). In August 2013, after a
divorce action commenced by the father was dismissed, the mother
commenced the first of the present proceedings seeking custody of
the children. The father petitioned for custody shortly
afterward. Family Court temporarily awarded joint legal custody
                              -2-                519749

of the children, with the mother to have primary physical
placement and the father to have specified parenting time. The
parties both commenced proceedings to modify the temporary
custodial arrangement, and the father also commenced a family
offense proceeding against the mother.

      In March 2014, as a result of the father's refusal to
permit his attorney to attend a pretrial conference without his
personal participation, Family Court issued an order dismissing
the father's initial petition for custody with prejudice. Family
Court then conducted a fact-finding hearing and a Lincoln hearing
on the four remaining petitions, resulting in an order entered in
May 2014 that, among other things, awarded sole legal custody and
primary physical placement of the children to the mother and
granted the father specified visitation. The father appeals from
the May 2014 order.

      Initially, while the father argues that Family Court erred
in dismissing his initial petition for custody, that dismissal
became final in a March 2014 order from which he has not taken an
appeal. Any issues regarding that dismissal, as a result, are
not properly before us (see Matter of Zubizarreta v Hemminger,
107 AD3d 909, 910 [2013]; Matter of Sergio LL., 269 AD2d 699, 699
[2000]).

      Turning to the appealed-from custody order, we affirm. The
father does not dispute that the provisions of the order are
supported by a sound and substantial basis in the record. He
does contend that Family Court improperly injected itself into
the fact-finding hearing. Family Court was indeed active during
the hearing, particularly so during the testimony of the father.
The father failed to object to this behavior, rendering
unpreserved his arguments as to why it was inappropriate
(see Matter of Stanziano v Stanziano, 235 AD2d 845, 846 [1997]).1


    1
        Almost all of the behavior the father now complains of
occurred during his own testimony, and no objections were raised
to it. The father, who had multiple attorneys represent him over
the course of this proceeding, thereafter elected to proceed pro
se and conduct the examination of his paramour himself. Family
                              -3-                519749

In any event, "a trial court may question witnesses or otherwise
intervene in the proceedings on its own initiative in order to
elicit relevant or important facts, clarify an issue or to
facilitate the orderly and expeditious progress of the" hearing
(People v Walker, 242 AD2d 752, 752 [1997], lv denied 91 NY2d 837
[1997]; see Matter of Emily A. [Gina A.], 129 AD3d 1473, 1474
[2015]). The interventions pointed to by the father largely
occurred as a result of his penchant for giving nonresponsive
answers, as well as his attempts to testify to hearsay and
"facts" outside of his personal knowledge, despite directions by
Family Court not to do so. Family Court curtailed this behavior
by striking the father's nonresponsive responses, stopping him
before he could add nonresponsive information to appropriate
answers and questioning him on its own initiative, all of which
were proper efforts to clarify the testimony and ensure an
orderly and expeditious hearing (see Matter of Fountain v
Fountain, 130 AD3d 1107, 1108 [2015]; Matter of Borggreen v
Borggreen, 13 AD3d 756, 757 [2004]).

      The remaining contention of the father regarding the
supposed bias of Family Court has been examined and found to be
lacking in merit.

     McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.




Court was required to intervene at times to ensure that he did so
in an appropriate manner. He then stopped his examination and
refused to call any additional witnesses, apparently feeling
impaired by the deficiencies in his former counsel's performance.
The father does not argue on appeal that he received the
ineffective assistance of counsel.
                        -4-                  519749

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
