| Matter of Dann v Dann |
| 2008 NY Slip Op 04802 [51 AD3d 1345] |
| May 29, 2008 |
| Appellate Division, Third Department |
| In the Matter of James A. Dann, Appellant, v Jonna L. Dann,Respondent. |
—[*1]
Ian R. Arcus, Law Guardian, Albany.
Cardona, P.J. Appeal from an order of the Supreme Court (Garry, J.), entered June 27, 2007in Chenango County, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of visitation.
The parties are the parents of two children born in 1996 and 1998. Petitioner, currentlyincarcerated at Groveland Correctional Facility in Livingston County, is serving a prison term of4 to 12 years following his conviction of arson in the third degree in connection with a fire at theresidence of respondent and the minor children (see People v Dann, 14 AD3d 795 [2005], lv denied 4 NY3d885 [2005]). By order dated October 27, 2004, petitioner apparently was granted, among otherthings, telephone access to the children every other Sunday.[FN*]
Petitioner thereafter commenced a modification proceeding seeking visitation with thechildren at the prison. Following a hearing, Family Court (Campbell, J.) dismissed petitioner'sapplication, finding that such visitation would not be in the children's best interests. [*2]Approximately one year later, in May 2007, petitioner commencedthe instant proceeding, again seeking "face to face" visitation with his children. Simultaneously,petitioner filed a violation petition alleging that respondent was interfering with his telephoneaccess to the children and refusing to facilitate correspondence between them. Upon transfer ofthe matter from Family Court, Supreme Court (Garry, J.) dismissed the modification proceeding,finding that petitioner failed to demonstrate a sufficient change in circumstances to warrantreconsideration of the visitation issue. With regard to the violation petition, respondent admittedto a nonwillful violation of the prior order with respect to petitioner's telephone access to thechildren, and the parties stipulated that petitioner would have such access every Sunday between6:00 p.m. and 7:00 p.m. and that correspondence between petitioner and the children wouldcontinue as previously awarded. In the event the children were unavailable at the appointed hour,provisions were made for petitioner to contact them at an alternate time. This appeal by petitionerensued.
We affirm. While omission from the record on appeal of the order sought to be modifiedordinarily would result in dismissal of the appeal (see Matter of Pratt v Anthony, 30 AD3d 708 [2006]), there is nodispute as to the access awarded petitioner under the prior order and, as such, we elect to reachthe merits (see Matter of Albanese vAlbanese, 44 AD3d 1117, 1118 n [2007]). To that end, we find no error in SupremeCourt dismissing the modification petition, seeking visitation with the children at the prison,without conducting a hearing. The allegations contained therein were insufficient to make therequisite evidentiary showing of a change in circumstances, since the prior order, to trigger anevidentiary hearing (see e.g. Matter ofJason DD. v Maryann EE., 4 AD3d 687, 688 [2004]). To the extent that themodification petition alleged that respondent was interfering with petitioner's access to thechildren, we need note only that, given the particular facts of this case, such allegations weremore appropriately addressed in the context of the related violation petition.
Mercure, Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The order sought to be modifiedis not included in the record on appeal.