| Matter of Kelley v VanDee |
| 2009 NY Slip Op 03418 [61 AD3d 1281] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Lee R. Kelley, Jr., Appellant, v CrystalVanDee, Respondent. (And Three Other Related Proceedings.) |
—[*1] Catherine E. Stuckart, Binghamton, for respondent. J. Mark McQuerry, Law Guardian, Hoosick Falls.
McCarthy, J. Appeals (1) from an order of the Family Court of Cortland County (Campbell,J.), entered September 6, 2007, which granted respondent's application, in four proceedingspursuant to Family Ct Act article 6, to modify a prior order of custody, and (2) from an order ofsaid court, entered October 30, 2007, which denied petitioner's motion for, among other things, anew trial.
The parties are the parents of a son (born in 2002). Pursuant to a December 2006 orderentered on stipulation, respondent (hereinafter the mother) was granted sole legal and physicalcustody with visitation to petitioner (hereinafter the father). Previous to this order, the partieshad been before Family Court on numerous occasions in the course of which the father's alcoholdependency had been a factor in visitation, i.e., he had previously been ordered to successfullycomplete alcohol treatment before unsupervised visitation would be allowed and was prohibitedfrom consuming alcohol for 24 hours prior to visitation or during visitation.
A few months after the December 2006 order was entered, yet another series of proceedingswere commenced between the parties after the mother refused to turn the child over for visitationone afternoon because the father showed up visibly intoxicated. This incident [*2]prompted the father to file violation and modification of custodypetitions (seeking full custody with no visitation to the mother). The mother, in turn, filed amodification petition (alleging that the father was once again consuming alcohol on a regularbasis and seeking, among other relief, to suspend visitation pending successful alcoholtreatment) and a family offense petition (alleging that the father made repeated threats to removethe child from the state). In her modification petition, the mother also noted that the father hadrecently been arrested on another alcohol-related offense.
Following a fact-finding hearing on all outstanding petitions, Family Court dismissed thefather's petitions for failure of proof[FN*]and modified the prior order by directing him to undergo alcohol treatment and permittingsupervised visitation on the condition of his active engagement in such treatment. It also denied amotion for a new trial. The father now appeals.
The father argues that Family Court's finding that he was intoxicated on the afternoon inquestion was not in accord with the evidence. The determination of Family Court, whichobserved and heard the testimony of all witnesses, is entitled to great deference and will not bedisturbed unless it lacks a sound and substantial basis in the record (see e.g. Matter of Roe v Roe, 33 AD3d1152, 1153 [2006]; Matter of Engwer v Engwer, 307 AD2d 504, 505 [2003]). Here,the mother's undisputed testimony established that she denied the father visitation on theafternoon in question out of concern for the child's safety because he showed up at theirdesignated exchange location intoxicated. According to the mother, when the father arrived, healmost fell over while getting out of his car, smelled of alcohol and admitted that he had beendrinking. He then refused to take a breathalyzer test when the two proceeded to a local policestation in an attempt to resolve the dispute. While a bartender testified that she served the fatheronly one nonalcoholic beer an hour or two before this scheduled exchange, Family Court foundthat this testimony still did not establish that he had not been drinking prior to his encounter withthe mother. Under these circumstances, the record fully supports Family Court's determinationthat a sufficient change in circumstances, namely, the father's resumption of drinking, warranteda modification of the prior order and that such modification was in the child's best interest(see Matter of Engwer v Engwer, 307 AD2d at 505; Matter of Sheavlier vMelendrez, 296 AD2d 622, 623 [2002]; cf. Matter of Laware v Baldwin, 42 AD3d 696, 696-697 [2007]).
The father also argues that Family Court (Campbell, J.) became an unsworn witness againsthim thus mandating her recusal. We are unpersuaded. Judge Campbell was intimately familiarwith the issues plaguing these parties, particularly the father's demonstrated need for alcoholtreatment, since she presided over all prior Family Court proceedings. At the initial appearancein these proceedings, Judge Campbell denied the father's request to reinstate visitation, but notedthat she would reconsider the application in the event he availed himself of treatment, which, shenoted, he had successfully completed in the past.
At this appearance, Judge Campbell also informed counsel that she recently arraigned [*3]the father, in her capacity as a local town judge, following hisfelony driving while intoxicated arrest and stated her observations of him in the course of thatmatter. In denying the father's subsequent request for recusal based on her involvement in thecriminal matter, Judge Campbell stated that she could impartially and fairly preside over theinstant proceedings despite same. In our view, no impropriety arose in these proceedings becauseof Judge Campbell's involvement in the criminal matter (see Matter of Kila DD., 28 AD3d 805, 805-806 [2006]; Matterof Karina U., 299 AD2d 772, 773 [2002], lv denied 100 NY2d 501 [2003]) or as aresult of her stated observations arising out of that matter. In short, we are unpersuaded thatJudge Campbell's observations rendered her an unsworn witness against the father or thereaftercolored her view of the hearing testimony. As no statutory basis for recusal existed (seeJudiciary Law § 14), and because Judge Campbell stated her ability to be fair andimpartial, we find no abuse of discretion in denying the recusal motion (see Matter KilaDD., 28 AD3d at 806; Matter of De Ruzzio v De Ruzzio, 288 AD2d 725, 726[2001]; see also People v Mabry,27 AD3d 835, 836-837 [2006]).
The father's remaining contentions are likewise unpersuasive. First, while the father arguesthat it was improper for Family Court to draw an "adverse inference" against him for refusing tocomply with an interim order directing a complete substance abuse evaluation, there is noindication in the record that Family Court in fact drew a negative inference against the father forany reason (i.e., his refusal to complete the evaluation or his failure to testify at the hearing) orthat the court imposed any type of sanction for his refusal to comply with this interim order.Thus, the argument is without merit. Finally, upon our review of the record, we reject his claimthat the Law Guardian provided "inadequate" assistance to the child.
Rose, J.P., Kane, Kavanagh and Stein, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: We note that, although thefather requested sole custody in his modification petition, the only specific relief requested at theconclusion of the hearing was resumption of visitation and "make-up" visitation. On appeal, hecontinues to raise only the issue of visitation.