| Matter of Chapman v Tucker |
| 2010 NY Slip Op 05452 [74 AD3d 1905] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Paul L. Chapman, Esq., Law Guardian, Appellant,v William M. Tucker, Respondent. In the Matter of William M. Tucker,Respondent, v Paul L. Chapman, Esq., Law Guardian, et al.,Appellants. |
—[*1] J. Scott Porter, Seneca Falls, for respondent-respondent and petitioner-respondent. Macht, Brenizer & Gingold, P.C., Syracuse (Jon W. Brenizer of counsel), forrespondent-appellant Shauna C. Tucker.
Appeals from an order of the Family Court, Onondaga County (George M. Raus, Jr., Ref.),entered March 20, 2009 in a proceeding pursuant to Family Court Act article 6. The order, interalia, denied the petition of the Law Guardian and imposed sanctions upon him.
It is hereby ordered that the order so appealed from is unanimously modified on the law byvacating the second and third ordering paragraphs and as modified the order is affirmed withoutcosts.
Memorandum: The Law Guardian, the petitioner in one proceeding as well as a respondentalong with respondent mother in the other proceeding (Law Guardian), appeals from an orderthat denied his petition seeking to suspend respondent father's supervised visitation with thesubject children and directed the Law Guardian to pay the attorney's fees and costs incurred bythe father based on the "frivolity" of the petition. The mother appeals from the same order that,in the proceeding commenced by the father against the Law Guardian and the mother, found herto be in willful violation of a prior order of custody and visitation.
Addressing first the imposition of sanctions, we agree with the Law Guardian that FamilyCourt abused its discretion in sua sponte sanctioning him upon determining that the petition filed[*2]on behalf of the children was frivolous, inasmuch as the courtfailed to afford the Law Guardian a reasonable opportunity to be heard before doing so(see 22 NYCRR 130-1.1 [a], [d]; Matter of Ariola v DeLaura, 51 AD3d 1389 [2008], lvdenied 11 NY3d 701 [2008]). In addition, the court erred in determining that the LawGuardian engaged in frivolous conduct in filing the petition. Indeed, we conclude that he in factcomplied with 22 NYCRR 7.2 by zealously representing the interests of the children. Wetherefore modify the order accordingly (see Ariola, 51 AD3d at 1389).
We agree with the father, however, that the court properly denied the petition of the LawGuardian seeking to suspend his supervised visitation with the children. "The denial of visitation. . . is a drastic remedy to be employed only where there are compelling reasons fordoing so and substantial evidence that visitation will be harmful to the child[ren]'s welfare"(Matter of Cameron C., 283 AD2d 946, 947 [2001], lv denied 97 NY2d 606[2001]). " 'The court's determination regarding custody and visitation issues, based upon afirst-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled togreat weight and will not be set aside unless it lacks an evidentiary basis in the record' "(Matter of Hill v Rogers, 213 AD2d 1079, 1079 [1995]; see Paul G. v Donna G.,175 AD2d 236, 237 [1991]; see also D'Errico v D'Errico, 158 AD2d 503, 504 [1990]).Here, there is an evidentiary basis in the record to support the court's determination thatcontinuation of the father's supervised visitation with the children is in their best interests(see Hill, 213 AD2d at 1079-1080).
With respect to the mother's appeal, we note that, although the court failed to comply withCPLR 4213 (b) by stating "the facts it deem[ed] essential" in determining that the motherwillfully violated the prior custody and visitation order, the record is sufficient to permit us tomake such findings (see Matter of Forjone v Platner, 191 AD2d 1033 [1993]). Theevidence presented at the hearing establishes that the mother disparaged and belittled the fatherin the presence of the children, in direct violation of the prior order of custody and visitation inquestion. In addition, the evidence establishes that the mother failed to participate in individualtherapy and to apprise the father of the children's "significant medical, dental or mental healthappointments," as required by the prior order. Therefore, contrary to the contention of themother, the court's determination that she willfully violated the prior order has "a sound andsubstantial basis in the record" (Matterof Stuttard v Stuttard, 2 AD3d 1415, 1416 [2003]). Present—Centra, J.P.,Peradotto, Carni, Lindley and Pine, JJ.