| Matter of Jodi S. v Jason T. |
| 2011 NY Slip Op 04564 [85 AD3d 1239] |
| June 2, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jodi S., Respondent, v Jason T., Appellant. (AndThree Other Related Proceedings.) |
—[*1] Richard Weinheimer, Fort Plain, for respondent. Brian G. DeLaFleur, Schenectady, attorney for the children.
Stein, J. Appeal from an order of the Family Court of Montgomery County (Cortese, J.),entered May 26, 2010, which, among other things, granted petitioner's application, in fourproceedings pursuant to Family Ct Act articles 6 and 8, to modify a prior order of custody andvisitation, and issued an order of protection.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorcedparents of two children (born in 2000 and 2003). Pursuant to an order entered on May 26, 2006,the parties shared joint legal custody of the children, with the mother having primary physicalcustody and the father having parenting time including, among other things, alternate weekendsfrom Saturday at 10:00 a.m. to Sunday at 7:00 p.m. On October 5, 2009, the mother commencedproceedings seeking an order of protection on behalf of herself and the subject children andmodification of the prior order of custody and visitation, to include sole custody to her andsupervised visitation with the father.
The mother's family offense petition alleged that on October 3, 2009, the father followed herfrom the local fairgrounds to the parking lot of a nearby store, where he screamed at her andaccused her of keeping the children from him, while the father's fiancÉe videotaped the[*2]incident, over the mother's objections. The mother furtheralleged that the father threatened her and that his behavior scared her and the children. She alsoalleged that she believed that the father had stopped taking his anti-psychotic medication and thathe was increasingly aggressive towards her. Based upon these allegations, Family Court entered atemporary order of protection which, among other things, prohibited the father from having anycontact with the mother and the children. That order was modified shortly thereafter to allow forsupervised visitation between the father and the children.
In her modification petition, the mother alleged a change in circumstances based upon thefather's "increasingly aggressive" behavior and his harassment and threatening conduct towardboth her and the children. On the same date the mother filed her petitions, the father filed apetition for modification of custody and visitation seeking to increase his parenting time. Thefather also filed a petition seeking to modify the temporary order of protection and the mothersubsequently filed a petition alleging a violation of the order of protection. The parties' variouspetitions were consolidated for trial.[FN1]After the trial, Family Court granted the mother's family offense petition and issued a permanentorder of protection for three years, which prohibited the father from having any contact witheither the mother or the children, except during the court ordered parenting times. Family Courtalso determined that there was a change in circumstances warranting modification of the custodyand visitation order, awarded the mother sole legal and physical custody and reduced the father'sweekend parenting time. The father now appeals.[FN2]
Family Court's determination that the father committed multiple family offenses in that heengaged in acts constituting harassment, disorderly conduct and stalking is supported by therecord (see Family Ct Act § 832; Penal Law § 120.45 [2]; § 240.20[7]; § 240.26 [2]; Matter of JulieG. v Yu-Jen G., 81 AD3d 1079, 1082 [2011]; Matter of Melissa K. v Brian K., 72 AD3d 1129, 1133 [2010]). Themother testified that, when the father confronted her in the parking lot of a store after followingher there from the fairgrounds, he was grabbing at the children, screaming and spitting in themother's face. She further testified that when she and the children got back in her vehicle afterexiting the store, the father stood behind the car and attempted to prevent them from leaving.
The father's intent to engage in the conduct proscribed by the applicable provisions of thePenal Law may be inferred from the circumstances (see Matter of Melissa K. v Brian K.,72 AD3d at 1133; Matter of Christina LL., 233 AD2d 705, 709 [1996], lv denied89 NY2d 812 [1997]). Moreover, according due deference to Family Court's credibilitydeterminations—especially in the face of the parties' completely contradictory recitationsof the events—we find no basis to disturb the court's assessment that the father's conductserved no legitimate purpose [*3]and that the videotape of theincident does not exonerate him (seeMatter of Boua TT. v Quamy UU., 66 AD3d 1165, 1166 [2009], lv denied 14NY3d 702 [2010]; Matter of Gil vGil, 55 AD3d 1024, 1025 [2008]).[FN3]
Nonetheless, we agree with the father's contention that Family Court erred in making theprovisions of the final order of protection effective for a period of three years. In order to issue anorder of protection in excess of two years, Family Court is required to make a finding on therecord that aggravating circumstances exist (see Family Ct Act § 827 [a] [vii]) or"that the conduct alleged in the petition is in violation of a valid order of protection" (Family CtAct § 842; see Matter of Guernseyv Guernsey, 37 AD3d 989, 990 [2007], lv dismissed 8 NY3d 1002 [2007]).Here, Family Court did neither. Moreover, Family Court dismissed the mother's violation petitionand we find no record evidence to support a finding of aggravating circumstances (see Matterof Julie G. v Yu-Jen G., 81 AD3d at 1083; Matter of Rosario WW. v Ellen WW.,309 AD2d 984, 987 [2003]; compare Matter of Guernsey v Guernsey, 37 AD3d at 990;Matter of Wright v Wright, 4 AD3d683, 685 [2004]; Matter of Flascher v Flascher, 298 AD2d 393 [2002]).Accordingly, the order of protection should be modified to expire after two years.
Additionally, we are persuaded by the father's argument that the record evidence does notwarrant the broad provisions of the order of protection requiring him to stay away from thechildren and their school, except during his scheduled parenting times (see e.g. Matter of Gilv Gil, 55 AD3d at 1025; compare Matter of Julie G. v Yu-Jen G., 81 AD3d at 1083;Matter of Amy SS. v John SS., 68AD3d 1262, 1264 [2009], lv denied 14 NY3d 704 [2010]). There was no testimonyadduced, nor did Family Court expressly find, that the stay away provisions were "reasonablynecessary to protect" the children from future family offenses (Matter of Gil v Gil, 55AD3d at 1025; see Family Ct Act § 827 [a] [vii]). Indeed, Family Court'sdetermination to continue unsupervised visitation with the father belies such a finding. Inasmuchas the narrow limitations placed upon the father's right to have contact with the children deprivehim of any opportunity to participate in their school and extracurricular activities and, thus, tomaintain a meaningful relationship with them (see Matter of Doherty v Doherty, 49 AD3d 641, 642 [2008]), theorder of protection should be modified to allow such contact in a manner which is notinconsistent with the provisions of such order pertaining to the mother and this matter shall beremitted to Family Court for that purpose (see generally Matter of Gil v Gil, 55 AD3d at1025-1026; Matter of Loriann Q. vFrank R., 53 AD3d 735, 736 [2008]; Matter of Ashley P., 31 AD3d 767, 769 [2006]).
Turning to the propriety of Family Court's modification of the father's parenting time, themother was required to establish "a change in circumstances reflecting a real need for change inorder to insure the continued best interest[s] of the child[ren]" (Matter of Robert SS. v Ashley TT., 75AD3d 780, 781 [2010] [internal quotation marks and citations omitted]; see Matter of White v Cicerone, 80AD3d 1102, 1103 [2011], lv denied 16 NY3d 711 [2011]; Matter of Paul T. v Ann-Marie T., 75AD3d 788, 789 [2010], lv denied 15 NY3d 713 [2010]). Here, Family [*4]Court clearly articulated its finding that such a change incircumstances existed and warranted modifying the existing order of joint legal custody to anorder granting the mother sole legal and physical custody. However, Family Court did not makean express finding that the change in circumstances warranted the modification of the father'sparenting time or that such modification was in the best interests of the children.
As relevant here, pursuant to the May 2006 order, the father had parenting time on alternateweekends from Saturday morning until Sunday evening, in addition to various holidays and oneweek of vacation during the summer, as well as at other such times upon which the parties couldagree. That order also provided that the father would have parenting time on virtually everyweekend from the beginning of July to the end of August. In the May 2010 order, whichexpressly superceded the May 2006 order, the father's regular biweekly parenting time wasreduced to a 24-hour period from Friday at 6:00 p.m. to Saturday at 6:00 p.m. and the weeklysummer weekend parenting time was eliminated. The record indicates that the parties disagreedconcerning various matters including, among other things, the children's religious upbringing andthat the father had been interfering with the children's attendance at the church of the mother'schoice and religious instruction thereat during his parenting time. Likewise, the father had failedto ensure that the children regularly participated in their usual extracurricular activities during hisparenting time. However, the evidence also showed that the father had previously resided somedistance from the mother's residence—arguably providing some explanation for his failureto transport the children to their activities during his limited parenting time—but that, atthe time of trial, he had relocated his residence to within 10 minutes of the mother's home.Moreover, the record does not reflect whether there were fewer scheduled activities during thechildren's summer recess from school. In its decision, Family Court focused on the parties'inability to communicate and cooperate with each other and did not relate its findings to thefather's request for increased parenting time or to its determination to reduce his parenting time.While there is some evidence that could support a determination that some modification of thefather's parenting time was warranted,[FN4]we are unable to determine what evidence was considered by Family Court and formed the basisfor its determination. Since Family Court is in a superior position to fashion an appropriate orderin the first instance, we remit the matter to that court for such purpose (see Matter of Mix vGray, 265 AD2d 692, 694 [1999]).
Peters, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as (1) modified respondent's parenting timeand (2) issued a permanent three-year order of protection; set the expiration date of the order ofprotection as May 25, 2012, and matter remitted to the Family Court of Montgomery County forfurther proceedings not inconsistent with this Court's decision, and, pending said proceedings,the May 2010 order shall remain in [*5]effect as a temporaryorder until the initial court appearance in Family Court; and, as so modified, affirmed.
Footnote 1: During the trial, Family Courtgranted the father's motion to dismiss the mother's violation petition, with prejudice.
Footnote 2: Inasmuch as the father has notaddressed the award to the mother of sole legal and physical custody on this appeal, any claimregarding that issue is deemed abandoned (see e.g. Matter of Dana A. v Martin B., 72 AD3d 1136, 1137 n[2010]; Matter of Telsa Z. [RickeyZ.—Denise Z.], 71 AD3d 1246, 1249 n 3 [2010]; Matter of Schermerhorn v Breen, 8AD3d 709, 710 n [2004]).
Footnote 3: Family Court specifically notedthat there were indications that the videotape may have been altered and our independent reviewof the videotape raises similar questions with regard to whether it completely and accuratelyportrays the events in question.
Footnote 4: Although not determinative, wenote that the attorney for the children argued that a reduction in the father's parenting time wouldbe inappropriate and indicated that he would not object to the father having additional vacationtime with the children.