| Matter of Graham v Thering |
| 2008 NY Slip Op 07360 [55 AD3d 1319] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Helen R. Graham, Appellant, v Richard C. Thering, Sr.,Respondent. |
—[*1] Lawrence Brown, Bridgeport, for respondent-respondent. Carolyn Kellogg Jonas, Law Guardian, Wellsville, for Kelly T. and Justin T.
Appeal from an amended order of the Family Court, Allegany County (Lynn L. Hartley, J.H.O.),entered April 23, 2007 in a proceeding pursuant to Family Court Act article 6. The amended order,among other things, modified a visitation provision of a prior custody and visitation order.
It is hereby ordered that said appeal from the amended order insofar as it concerned the parties'daughter is unanimously dismissed and the amended order is affirmed without costs.
Memorandum: Petitioner mother contends that Family Court erred in refusing to modify a priorcustody order by awarding her custody of the parties' two youngest children. We note at the outset thatthe parties' daughter has attained the age of 18, and we therefore dismiss as moot the appeal from theamended order insofar as it concerned that child (see Matter of Krest v Kawczynski, 9 AD3d 907 [2004]). Contrary tothe contention of the mother, we conclude that the record supports the court's determination that shefailed to meet her burden of establishing a sufficient change in circumstances since the entry of the priororder (see Matter of Chase v Benjamin,44 AD3d 1130, 1130-1131 [2007]; Matter of Stacey L.B. v Kimberly R.L., 12 AD3d 1124 [2004], lvdenied 4 NY3d 704 [2005]; see also Matter of Irwin v Neyland, 213 AD2d 773 [1995]).According to the mother, she established a sufficient change in circumstances since the entry of the priororder because she "has recently acquired a new residence, and can provide a safe, stable and lovinghome," and because the youngest child expressed his wish to reside with her. Contrary to thecontention of the mother, the court did not err in admitting testimony concerning the condition of herprior mobile home because that testimony was relevant with respect to her allegation that she hadobtained a new mobile home that was an appropriate home for the youngest child (see generallyMatter of Sellen v Wright, 229 AD2d 680 [1996]; Fox v Fox, 177 AD2d 209, 210[1992]). We note in addition that the mother failed to preserve for our review her contention that thecourt erred in admitting other specified testimony. Even assuming, arguendo, that the mother'scontention is preserved for our review and has merit, we conclude that any error in the admission ofthat testimony is [*2]harmless inasmuch as the court did not rely on it indetermining that the mother failed to establish a sufficient change in circumstances to warrant amodification of the prior order. The record establishes that, although the mother had purchased a newmobile home, it lacked running water and sufficient electrical service to meet even the most basichousing needs of a child. Additionally, even crediting the assertion of the mother that her youngest sonexpressed his wish to reside with her, we note that it is well established that the "established custodialarrangement should not be changed solely to accommodate the desires of the child" (Fox, 177AD2d at 211; see Matter of Betro vCarbone, 50 AD3d 1583 [2008]; Matter of Johnston v Bridenbecker, 300 AD2d1062 [2002]). Present—Martoche, J.P., Smith, Lunn, Pine and Gorski, JJ.