| Matter of Simonds v Kirkland |
| 2009 NY Slip Op 08662 [67 AD3d 1481] |
| November 20, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Eric R. Simonds, Respondent, v Toni M. Kirkland,Appellant. |
—[*1] Kruk & Campbell, P.C., Lima (Andrew F. Emborsky of counsel), for petitioner-respondent. John M. Lockhart, Law Guardian, Geneseo, for Anthony S.
Appeal from an order of the Family Court, Livingston County (Dennis S. Cohen, J.), enteredApril 22, 2008 in a proceeding pursuant to Family Court Act article 6. The order, inter alia,granted sole legal custody of the parties' son to petitioner.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order modifying a prior order by granting sole legalcustody of the parties' son to petitioner father, respondent mother contends that Family Courterred, inter alia, in relying upon evidence that her paramour sexually abused the son's stepsistersin determining that the father made the requisite showing of a change of circumstances towarrant an inquiry into whether modification of the existing custody arrangement was in theson's best interests. We note at the outset that the mother may not assert the defense of collateralestoppel concerning that sexual abuse. Although the mother belatedly objected to theintroduction of the evidence concerning that sexual abuse, she did not object based on thedefense of collateral estoppel, nor did she raise that defense in her answer or move to dismiss thepetition on that ground. We thus conclude that the mother waived her right to assert that defense(see CPLR 3018 [b]; 3211 [a] [5]; [e]; Mayers v D'Agostino, 58 NY2d 696[1982]; Matter of Hall, 275 AD2d 979 [2000]).
Contrary to the mother's further contention, based on the evidence in the record before us weconclude that the father established a sufficient change of circumstances to warrant an inquiryinto whether a modification of the existing custody arrangement was in the son's best interests. Inaddition to the evidence of sexual abuse of the son's stepsisters (see generally Matter of AlanYY. v Laura ZZ., 209 AD2d 902, 904-905 [1994], lv denied 85 NY2d 806 [1995]),the record establishes that the mother continued to reside with her paramour thereafter, that sheplanned to exercise her visitation with the parties' son in a basement room with no furniture, andthat she routinely [*2]placed him in an environment where hewas exposed to pornography and excessive alcohol and drug consumption (see generallyFriederwitzer v Friederwitzer, 55 NY2d 89 [1982]; Matter of Breitung v Trask, 279AD2d 677, 678 [2001]).
The mother also will not be heard to contend that the court erred in permitting theamendment of the pleadings to conform to the evidence presented at the hearing on the petition,inasmuch as the record establishes that the mother's attorney consented to that amendment(see McLaughlin v City of New York, 294 AD2d 136 [2002]; see also Atweh vHashem, 284 AD2d 216, 217 [2001]). In any event, "[t]he court has discretion to permit anamendment to conform the pleadings to the proof . . . [and i]t is an abuse ofdiscretion to [withhold such permission] unless the opposing party can allege demonstrable andreal surprise or prejudice" (General Elec. Co. v Towne Corp., 144 AD2d 1003, 1004[1988], lv dismissed 73 NY2d 994 [1989]; see CPLR 3025 [c]). Even assuming,arguendo, that the mother was in fact "an opposing party," we conclude that she failed todemonstrate that she sustained any "real surprise or prejudice" arising from the amendment(General Elec. Co., 144 AD2d at 1004).
Finally, even assuming, arguendo, that the child was aggrieved when the court denied themother's request that the court recuse itself, we conclude that the Law Guardian did not take across appeal from the order and thus may not seek affirmative relief with respect to the denial ofthe mother's request (see Bielli v Bielli, 60 AD3d 1487 [2009], lv dismissed 12NY3d 896 [2009]). Present—Smith, J.P., Peradotto, Green, Pine and Gorski, JJ.