The opinion
Pine, J. P.,
dissents in part and votes to modify in the following opinion in which Wisner, J., concurs. We respectfully dissent in part. We agree with the majority that respondent’s appeal has merit in that Supreme Court did in fact modify the Massachusetts support order despite its statement to the contrary. We further agree that the New York court lacks subject matter jurisdiction to modify that order without compliance with the Uniform Interstate Family Support Act (Family Ct Act art 5-B) and the Full Faith and Credit for Child Support Orders Act (28 USC § 1738B). We disagree, however, that we should vacate the order with respect to custody and visitation on the ground of lack of subject matter jurisdiction. The order insofar as it permitted relocation was not appealed and the order insofar as it modified visitation was appealed on the merits, not on the ground of lack of subject matter jurisdiction. Although lack of subject matter jurisdiction may be raised at any time (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 ), no stay was sought, the issue has not been raised on appeal, and respondent and the children presumably relocated as planned to Portland, Oregon in the summer of 1998. There is no doubt that Supreme Court had the power “to deal with the general subject involved in the action” (Hunt v Hunt, 72 NY 217, 230 ). The court concluded that Massachusetts had declined to exercise jurisdiction. Under those circumstances we would not raise, sua sponte, whether the court lacked subject matter jurisdiction over custody and visitation issues here, much less determine the issue. On the merits, we would affirm the visitation order as a reasonable exercise of discretion.
Hayes and Scudder, JJ., concur with Lawton, J.; Pine, J. P., and Wisner, J., dissent in part and vote to modify in a separate opinion by Pine, J. P.
Order reversed, on the law, without costs, and petition and counterclaim dismissed. [See, 270 AD2d —, Mar. 30, 2000.]