| Matter of DeRuzzio v Ruggles |
| 2011 NY Slip Op 07322 [88 AD3d 1091] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Daniel J. DeRuzzio, Respondent, v FayRuggles, Appellant. |
—[*1] O'Brien & Associates, Albany (Kevin L. O'Brien of counsel), for appellant. Letty J. Manne, Craryville, attorney for the children.
McCarthy, J. Appeal from an order of the Family Court of Columbia County (Work, J.),entered December 16, 2009, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorcedparents of three children, Elyse (born in 1992),[FN*] Daniel (born in 1993), and Michaela (born in 1996). Except for a brief period when the fatherhad custody of Elyse, the mother has always had physical custody of the children and the fatherhas had set visitation. The father filed this application to modify custody based upon allegationsthat the mother provided the son with alcohol and drank it with him. At the conclusion of ahearing, Family Court dismissed the petition. The father appeals.
Family Court did not abuse its discretion by limiting the evidence at the hearing. The father'spetition alleged a change in circumstances since the court's October 2008 order. [*2]Accordingly, the court did not err in refusing to permit evidenceconcerning incidents from July 2008, which had been raised in a previous petition (see Matterof Palmer v Palmer, 284 AD2d 612, 613-614 [2001]). The court also did not abuse itsdiscretion in declining to interview Daniel in camera. The determination of whether to hold aLincoln hearing lies within Family Court's discretion (see Matter of Walker vTallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]). Here, thecourt noted that during a Lincoln hearing in a prior proceeding, Daniel was very fragileand had a "meltdown." The mother, the father's therapist and the attorney for the children allstated that Daniel was upset by, and did not want to be involved in, his parents' courtproceedings. Considering the potential negative impact on the child, along with the lack ofevidence to support most of the father's petition, the court did not err in denying the father'srequest for a Lincoln hearing.
Family Court properly dismissed the petition. The father was required to prove that asufficient change in circumstances had occurred since entry of the prior order that necessitated amodification of the existing custody arrangement to ensure the best interests of the children (see Matter of Goodfriend vDevletsah-Goodfriend, 29 AD3d 1041, 1042 [2006]). The court found that the father'stestimony was inconsistent, and he failed to prove that the mother regularly supplied alcohol tothe children or drank with them. The father's proof established that the mother provided one ortwo wine coolers to their son and his friend on one occasion when the son was 15 years old.While the court found this "absolutely inexcusable," the court also felt that this was an isolatedincident. According deference to the court's credibility determinations (see Matter of Jeker v Weiss, 77 AD3d1069, 1070 [2010]), the record supports the court's determination that a modification ofcustody was not warranted.
Mercure, J.P., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: Elyse is no longer subject to anorder of custody because she is 19 years old, rendering the appeal moot insofar as it concerns her.