| Matter of Barbara L. v Robert M. |
| 2014 NY Slip Op 02356 [116 AD3d 1101] |
| April 3, 2014 |
| Appellate Division, Third Department |
| In the Matter of Barbara L., Respondent-Appellant, vRobert M., Appellant-Respondent. (And Two Other RelatedProceedings.) |
—[*1] Jane M. Bloom, Monticello, for respondent-appellant. Cliff Gordon, Monticello, attorney for the child.
Garry, J. Cross appeals from an order of the Family Court of Sullivan County(McGuire, J.), entered January 7, 2013, which, among other things, (1) partially grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify aprior order of custody, (2) dismissed respondent's application, in a proceeding pursuantto Family Ct Act article 6, to modify a prior order of custody, and (3) dismissedpetitioner's application, in a proceeding pursuant to Family Ct Act article 10, to holdrespondent in violation of a prior order.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theparents of a child born in 2009. In May 2012, following a hearing and noting the"acrimonious, embattled and embittered" relationship of the parents, Family Courtawarded sole custody to the mother, and established weekly parenting time for the father,together with specified annual vacation and holiday time. The determination wasappealed and affirmed. In September 2012, the mother commenced the first of the instantproceedings by filing a violation petition together [*2]with a petition for modification of the visitation provisionsof the prior order.[FN*]In October 2012, the father commenced a proceeding seeking various modificationsrelative to visitation. Following a four-day hearing, Family Court dismissed the mother'sviolation petition and, finding insufficient evidence of a change in circumstances tosupport modification, dismissed both modification petitions, except to direct that thefather's paramour not have contact with the child. The father appeals, and the mothercross-appeals.
It is well established that, upon a request for modification of a prior order, athreshold finding of a change in circumstances is required before the court may proceedto a best interests analysis (seeMatter of Owens v O'Brien, 91 AD3d 1049, 1050 [2012]; Matter of Fox v Grivas, 81AD3d 1014, 1015 [2011]; Matter of Robert SS. v Ashley TT., 75 AD3d 780, 781[2010]). Unfortunately, the record clearly supports Family Court's finding that theparents did not progress in their ability to communicate or cooperate in raising their childin the several months between the two hearings, and that both parents fail to recognizethat their own antagonistic attitudes and related conduct pose a danger to their youngchild. Nonetheless, as Family Court held, "while the parties' collective behavior istroubling, it is no different than that testified about in prior trials." The record uponreview supports a finding that the parties have not made positive progress, but theirrespective conduct and the allegations against each other remain essentially the same asthose underlying the prior determination. Thus, according appropriate deference toFamily Court's credibility determinations, we find that the denial of both modificationpetitions is supported by a sound and substantial basis (see Matter of Owens vO'Brien, 91 AD3d at 1050).
Family Court's prior order of May 2012 included a provision directing that "thefather shall be home on the weeks during the vacation period he has the child and that hecare for the child and that she not be left alone with [the paramour]." To the extent thatFamily Court sought to clarify this limitation in its later order, it was not necessary that achange in circumstances be established (see Matter of Green v Green, 109 AD3d 1027, 1028[2013]; Matter of Robert SS. v Ashley TT., 75 AD3d at 781 n 1). However, weagree with the father's contention that in directing "no contact" between the child and theparamour, Family Court went beyond a mere clarification; as the record reveals nochange in circumstances, this modification was improper.
In the course of the hearing, Family Court granted the father's application for adirected verdict dismissing the mother's violation petition on the ground that the originalphrasing of the limitation on the paramour's supervision of the child was ambiguous as towhether the limitation was imposed only for vacation periods; the court did not find thisinterpretation "wholly unreasonable" despite finding it "narrow" and, thus, declined toimpose any sanction for failure to comply. Contrary to the mother's assertion, we findthat Family Court properly dismissed the violation petition on this basis (see Matter of Gonzalez vHunter, 50 AD3d 1262, 1264 [2008]). However, given our determination thatthe court's limitation on all contact with the paramour was improper, the matter must beremitted for clarification relative to the restriction of the paramour's role.
Lahtinen, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as directed respondent'sparamour to have no contact with the child; matter remitted to the Family Court ofSullivan County for further proceedings not inconsistent with this Court's decision, and,as so modified, affirmed.
Footnote *: Family Court dismissedthe mother's third petition, alleging a family offense upon grounds similar to thoseasserted in the violation petition; this is not at issue on appeal.