                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 18, 2016                    521019
________________________________

In the Matter of PATRICK M.
   SEVERING,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

DENISE M. SEVERING,
                    Appellant.
________________________________


Calendar Date:    January 12, 2016

Before:    Peters, P.J., McCarthy, Rose and Lynch, JJ.

                              __________


      Orseck Law Offices, PLLC, Liberty (Gerald Orseck of
counsel), for appellant.

     Timothy P. Burke, Monticello, for respondent.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Sullivan County
(Meddaugh, J.), entered July 31, 2014, which, in a proceeding
pursuant to Family Ct Act article 4, among other things, denied
respondent's motion to renew.

      The parties have sought relief in overlapping proceedings
in both Supreme Court and Family Court regarding the obligation
of petitioner (hereinafter the father) to pay child support to
respondent (hereinafter the mother) under the terms of a
stipulation that was incorporated, but not merged, into a
                               -2-                521019

February 2000 divorce judgment.1 As relevant to this appeal, the
father filed a petition in Family Court in September 2011 to
reduce his child support payments because his income had
purportedly declined. While the Family Court proceeding was
pending, the mother moved in Supreme Court to enforce the
father's stipulated child support obligation. Neither party,
however, sought to consolidate the pending Family Court petition
with the Supreme Court action. In December 2012, Supreme Court
(Cahill, J.), among other things, dismissed the father's legal
challenges to the stipulation and granted the mother's request
for a judgment for child support arrears to that date. The
father appealed.

      While that appeal was pending, the Support Magistrate
dismissed the father's petition in Family Court as barred by the
doctrine of res judicata, noting that the father could have
sought a downward modification in Supreme Court. The father then
filed objections and, in February 2014, Family Court (Meddaugh,
J.), among other things, reversed so much of the Support
Magistrate's order as had dismissed the father's modification
petition on res judicata grounds. Family Court also granted the
father permission to amend his reinstated petition to include
allegations regarding further reductions to his income occurring
after Supreme Court's December 2012 order. No appeal was taken.

      When we subsequently affirmed Supreme Court's December 2012
order (Severing v Severing, 117 AD3d 1129 [2014]), the mother
moved in Family Court for reconsideration of its February 2014
order. She claimed that our decision affirming Supreme Court, as
well as the parties' arguments in that appeal, provided a ground
for Family Court to dismiss the father's petition. Family Court
treated the motion as one for renewal and denied it. The mother
now appeals.2


     1
        We have twice before reviewed orders of Supreme Court in
the divorce action (Severing v Severing, 117 AD3d 1129 [2014];
Severing v Severing, 97 AD3d 956 [2012]).
     2
        Contrary to the father's contention, the mother provided
proof that the notice of appeal was properly served upon the
                              -3-                  521019

      We affirm. "As relevant here, a motion to renew must 'be
based upon new facts not offered on the prior motion that would
change the prior determination'" (Hyman v Schwartz, 127 AD3d
1281, 1285 [2015], quoting CPLR 2221 [e] [2]). In our decision
affirming Supreme Court's December 2012 order awarding child
support arrears to that date, we made no reference or ruling
regarding the issue of downward modification, notwithstanding
that the parties mentioned in their briefs that the issue was
pending separately in Family Court. Under these circumstances,
we must agree with Family Court that neither our decision nor the
parties' arguments on appeal constituted new facts that would
warrant granting a motion to renew.

     Peters, P.J., McCarthy and Lynch, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




father, and the alleged error in filing the notice of appeal does
not require that the appeal be dismissed (see Albany Eng'g Corp.
v Hudson River/Black Riv. Regulating Dist., 110 AD3d 1220, 1222 n
[2013]). Further, the record was correctly certified (see CPLR
2105; 22 NYCRR 800.7 [a] [1]).
