                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 22, 2016                   521200
_____________________________________

In the Matter of DOUGLAS A.
   STOPPER,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DANA L. STOPPER,
                    Appellant.

(And Three Other Related Proceedings.)
______________________________________


Calendar Date:   November 14, 2016

Before:   McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.

                             __________


     Diane V. Bruns, Ithaca, for appellant.

      Law Offices of Tina C. Bennett and Beth A. Lockhart,
Canastota (Tina C. Bennett of counsel), for respondent.

     Donna C. Chin, Ithaca, attorney for the children.

                             __________


Mulvey, J.

      Appeal from an order of the Family Court of Tioga County
(Keene, J.), entered May 21, 2015, which granted petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
to modify a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the separated parents of two
children born in 2003 and 2004. In February 2014, Family Court,
upon a prior petition for custody, awarded the mother and father
joint legal custody with primary physical custody to the mother
                              -2-                521200

and specified periods of visitation to the father. Thereafter,
in March 2014, the father commenced a modification proceeding
seeking, among other things, the transfer of primary physical
custody of the children to him. The father also petitioned for
enforcement of the existing February 2014 order of custody. The
mother subsequently petitioned for modification of the February
2014 order of custody to obtain sole custody of the children and
petitioned for immediate changes in visitation. During an
ensuing fact-finding hearing on the parties' petitions, the
mother and the father entered into a settlement that provided for
joint legal custody, primary physical custody of the children to
the mother and specified visitation to the father. The terms of
the agreement were placed on the record and, upon consent,
incorporated into a written order, from which the mother now
appeals.

      The mother contends that her consent to the settlement
agreement and consent order was involuntary and the product of
duress and coercion. Inasmuch as the order that the mother
challenges was entered upon consent, it cannot be appealed, and
the appeal must therefore be dismissed (see Matter of Connor S.
[Joseph S.], 122 AD3d 1096, 1097 [2014]; Matter of McDonald v
Reed, 68 AD3d 1181, 1181-1182 [2009], lv dismissed 14 NY3d 758
[2010]). Moreover, the mother has failed to move to vacate the
order or set aside the stipulation on the grounds that she now
avers (see Matter of Zachary M. [Ashley N.], 141 AD3d 771, 771
[2016]; Matter of Rumpel v Powell, 129 AD3d 1344, 1345 [2015];
Matter of Connor S. [Joseph S.], 122 AD3d at 1097). In any
event, were the challenged order properly before us, we would
find, upon reviewing the record, that the mother knowingly and
voluntarily agreed to the consent order and that she was apprised
of its terms and implications (see Matter of Connor S. [Joseph
S.], 122 AD3d at 1097; Matter of Collins v Brush, 17 AD3d 726,
727-728 [2005]).

     McCarthy, J.P., Garry, Rose and Aarons, JJ., concur.
                        -3-                  521200

ORDERED that the appeal is dismissed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
