| Matter of Kramer v Berardicurti |
| 2010 NY Slip Op 09792 [79 AD3d 1794] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Lisa Kramer, Appellant, v Ken Berardicurti,Respondent. |
—[*1] Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of counsel), forrespondent-respondent. Lori Robb Monaghan, Attorney for the Children, Rochester, for Gabriella B. and GiannaB.
Appeal from an amended order of the Family Court, Monroe County (Thomas W. Polito, R.),entered June 25, 2009 in a proceeding pursuant to Family Court Act article 6. The amendedorder, insofar as appealed from, denied the petition for sole custody.
It is hereby ordered that the amended order insofar as appealed from is unanimously reversedon the law without costs, the petition seeking sole custody of the children is granted, and thesanction imposed upon petitioner is vacated.
Memorandum: We agree with petitioner mother that Family Court erred in denying herpetition seeking to modify a prior order of custody and visitation by granting her sole custody ofthe parties' children. It is well settled that "modification of an existing joint custody[arrangement] is warranted where the relationship between joint custodial parents so deterioratesthat they are wholly unable to cooperate in making decisions affecting their child[ren]" (Matter of Lynch v Tambascio, 1 AD3d816, 817 [2003]), and that is the case here. In addition, we agree with the mother that thecourt abused its discretion in sua sponte sanctioning her upon determining that she filed herpetition frivolously, "inasmuch as the court failed to afford [her] a reasonable opportunity to beheard before doing so" (Matter ofChapman v Tucker, 74 AD3d 1905, 1905 [2010]; see 22 NYCRR 130-1.1 [a],[d]; Matter of Ariola v DeLaura, 51AD3d 1389 [2008], lv denied 11 NY3d 701 [2008]). We note that the father did nottake a cross appeal from the order, and we therefore do not address any issue concerning thesanction imposed upon him. We also note that we do not disturb the order insofar as it sets fortha detailed visitation schedule. Present—Martoche, J.P., Centra, Fahey, Lindley andSconiers, JJ.