Mitchell v. Morris

In a child custody and/or visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Lauria, J.), dated April 25, 1991, which, upon his default in appearing, held that an order of the same court, dated June 13, 1990, remained in full force and effect.

Ordered that the appeal is dismissed, with costs.

No appeal lies from an order made upon the default of the aggrieved party (see, CPLR 5511; Katz v Katz, 68 AD2d 536). The proper procedure would have been for the appellant to move to vacate his default, and if necessary, appeal from the order deciding that motion (Katz v Katz, supra).

We further note that the appellant, if he be so advised, may move to modify the prior order of the Family Court based upon new facts or circumstances. Lawrence, J. P., Miller, Ritter and Copertino, JJ., concur.