| Matter of Jeker v Weiss |
| 2010 NY Slip Op 07427 [77 AD3d 1069] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Brian Jeker, Respondent, v Michelle Weiss,Formerly Known as Michelle Jeker, Appellant. (And Three Other RelatedProceedings.) |
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Malone Jr., J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered September 29, 2008, which, among other things, granted petitioner's application, in fourproceedings pursuant to Family Ct Act articles 6 and 8, for modification of a prior order ofcustody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) were married in1997 and are the parents of two children, a daughter (born in 1998) and a son (born in 2000).Following the parties' separation, a series of temporary custody orders ensued resulting in anaward of joint legal custody with primary physical custody to the father and, as of December2005, limited supervised visitation to the mother. These orders remained in effect following theparties' divorce in May 2007 pending a referral of the custody and visitation issues to FamilyCourt.
In July 2007, the father commenced the first of these proceedings seeking modification of theDecember 2005 order—specifically, requesting sole legal custody of thechildren—and [*2]alleging, among other things, that themother had abandoned the children. The mother twice cross-petitioned for similar relief and fileda family offense petition. At the conclusion of a five-day hearing, Family Court, among otherthings, granted the father's application and awarded sole legal and physical custody to him withlimited supervised visitation to the mother. This appeal by the mother ensued.
We affirm. "[A] parent seeking to modify an existing custody order bears the burden ofproving that there has been a sufficient change in circumstances since the entry of that orderwarranting a modification thereof in the children's best interests" (Matter of Siler v Wright, 64 AD3d926, 928 [2009]; see Matter ofWilliams v Williams, 66 AD3d 1149, 1150 [2009]; Matter of Goldsmith v Goldsmith, 50 AD3d 1190, 1191 [2008]).Whether the requested modification will serve the children's best interests requires considerationof a number of factors, "including the quality of each parent's home environments, their pastperformance and stability, and each parent's relative fitness and ability to provide for thechild[ren's] intellectual and emotional development" (Matter of Calandresa v Calandresa, 62 AD3d 1055, 1056 [2009];see Matter of Kowatch v Johnson,68 AD3d 1493, 1495 [2009], lv denied 14 NY3d 704 [2010]; Matter of Zwack v Kosier, 61 AD3d1020, 1022 [2009], lv denied 13 NY3d 702 [2009]). In light of Family Court's abilityto evaluate conflicting testimony and assess the credibility of the relevant witnesses first hand,we accord great deference to its factual findings and will not set them aside unless they lack asound and substantial basis in the record (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406[2010]; Matter of Siler v Wright, 64 AD3d at 928; Matter of Diffin v Towne, 47 AD3d 988, 990 [2008], lvdenied 10 NY3d 710 [2008]).
We turn first to the mother's cross petition, which is premised upon the father's allegedalcoholism and a general pattern of abuse toward the mother. Simply put, the record before us isdevoid of any evidence even suggesting that the father may have a problem with alcohol andcontains no credible evidence to support the mother's claims of abuse. Although the motherasserted that the father stalked and/or shoved her outside her then residence in New York City ontwo occasions in June 2007,[FN1]the father offered both testimonial and documentary evidence to establish that he was in BroomeCounty at the time of these alleged incidents and all resulting criminal charges filed against himwere dismissed. The mother's testimony to the contrary presented a credibility issue for FamilyCourt to resolve and, in light of the mother's admission that she, among other things, previouslylied under oath, we have no quarrel with Family Court's [*3]decision to credit the father's proof on this point.[FN2]Accordingly, based upon our review of the record as a whole, we find insufficient evidence towarrant granting the mother's modification request.
We reach a contrary conclusion, however, with regard to the father's modification petition.The crux of his argument on this point is that the mother abandoned the children by relocatingand failing to exercise her visitation rights since December 2005 and, further, that her repeatedattempts to falsely accuse him of harassment and other criminal conduct render her unfit. For thereasons that follow, we find ample evidence to establish that the parties' relationship issufficiently acrimonious to preclude a continued award of joint custody and, further, that thechildren's best interests are served by awarding sole legal and physical custody to the father withlimited supervised visitation to the mother.
As a starting point, the mother readily admitted that she failed to engage in supervised visitswith the children after December 2005—purportedly because the children did not reactwell to the setting for those visits—and, as of the time of trial, had only spoken with thechildren on the telephone four times in two years.[FN3]The mother also refused to discuss, in any level of detail, her current employment or livingarrangements, which plainly qualify as relevant areas of inquiry in a custody determination,purportedly out of fear that the father would somehow use this information against her. Thefather also testified, without contradiction, that as of the time of the hearing, the mother had notconsistently maintained health insurance coverage for the children—despite a requirementto do so.
The record further reveals that in addition to the attempt to implicate the father in criminalactivity in June 2007, the mother orchestrated an elaborate plan to falsely accuse the father ofphysically assaulting her in October 2005. Specifically, witnesses testified that the mother hiredsomeone to strike her in the face, cut her own lip with a box cutter and paid two other individualsto give false statements to law enforcement officials implicating the father in the assault, whichresulted in the father being charged with harassment in the second degree. Although the chargeswere dropped on the day of trial when the witnesses recanted, as a result of the mother'saccusations, the parties' youngest child, then five years old, who the mother contended witnessedthe event, was subject to interviews by both police officers and social services officials. Asubsequent investigation by the local social services department resulted in an indicated reportagainst the mother for endangering the welfare of her son; all allegations against the father weredeemed to be unsubstantiated. Despite overwhelming evidence that the mother fabricated thisentire incident, including her subsequent plea of guilty to the crime of [*4]attempting to bribe a witness, the mother nonetheless continued tomaintain at the hearing that the father assaulted her on the day in question.
In addition to the foregoing felony conviction, the mother readily admitted that she had amisdemeanor conviction for falsifying official documents based upon her misrepresenting hercredentials in order to obtain employment. Specifically, she conceded that she worked as apsychologist for more than two years after falsely representing that she had a Ph.D. in psychologyand, as noted previously, acknowledged that she had lied under oath.[FN4]Contrary to the mother's assertion, her conduct in this regard indeed bears directly upon herfitness as a parent, as such behavior either reflects serious lapses in judgment or evidences awillingness to advance her own interests at the expense of others—including her children.Accordingly, Family Court's findings that the father demonstrated the requisite change incircumstances and, further, that the children's best interests would be served by awarding solecustody to him with limited supervised visitation to the mother are fully supported by the recordand, as such, will not be disturbed.
The remaining issues raised by the mother do not warrant extended discussion. To the extentthat she contends that the father's counsel should not have been permitted to remark in hissummation upon the absence of testimony from the mother's treating psychiatrist, we need noteonly that the mother, through her attorney, repeatedly placed her mental health in issue at thehearing and, as such, counsel's remark was fair comment. Further, contrary to the mother'sassertion, counsel was permitted to ask the father what, if any, disparaging comments he mayhave made to the children about her. Finally, we find no support in the record for the mother'sclaim that Family Court's disposition in this matter was punitive in nature. The mother'sremaining contentions, to the extent not specifically addressed, have been examined and found tobe lacking in merit.
Mercure, J.P., McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The mother also sought tointroduce evidence of a third alleged incident occurring on June 29, 2007 but was precluded fromdoing so based upon her failure to comply with discovery demands. In this regard, we need noteonly that CPLR 3126 vests a trial court with the authority to fashion an appropriate remedywhere, as here, a party "refuses to obey an order for disclosure or wilfully fails to discloseinformation which the court finds ought to have been disclosed." Given the mother'sdemonstrated history of noncompliance, we cannot say that Family Court abused its discretion inprecluding her from offering evidence on this point (see Cavanaugh v Russell Sage Coll., 4 AD3d 660, 660-661[2004]).
Footnote 2: Although the mother also calleda clinical psychologist to testify as to her parental fitness, Family Court properly accorded littleweight to the expert's opinion based upon, among other things, the psychologist's failure to obtainindependent verification of the information provided by the mother, meet the parties' children orobserve their interaction with the mother.
Footnote 3: Notably, when asked how shewould respond in the event Family Court continued the supervised visitations at the existinglocation, the mother indicated that she would continue to forgo visits with her children underthose circumstances.
Footnote 4: According to the father, themother purchased her Ph.D. from an Internet site.