| Matter of Helles v Helles |
| 2011 NY Slip Op 06666 [87 AD3d 1273] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Tonya Helles, Appellant, v Luke Helles, Sr.,Respondent. (Appeal No. 1.) |
—[*1] Kathleen P. Reardon, Rochester, for respondent-respondent. Wendy S. Sisson, Attorney for the Children, Geneseo, for Abigail H., Jasmine H., Isaac H.,Luke H., Jr. and Dylan H.
Appeal from an order of the Family Court, Livingston County (Robert B. Wiggins, J.),entered April 8, 2010 in a proceeding pursuant to Family Court Act article 6. The order, interalia, continued the prior visitation schedule.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, petitioner mother appeals from an order that, inter alia,continued the prior visitation schedule with respect to the parties' children. In appeal No. 2, themother appeals from an order that, inter alia, dismissed her family offense petition. In appeal No.3, the mother appeals from an order dismissing two petitions in which she alleged that the fatherhad violated the temporary order of protection. We affirm the order in each appeal. Addressingfirst the order in appeal No. 3, we conclude that the mother has failed to brief any issuesregarding that order, and we therefore deem those issues abandoned (see Matter of Jezekiah R.-A. [EdwinR.-E.], 78 AD3d 1550, 1551 [2010]; Ciesinski v Town of Aurora, 202 AD2d984 [1994]).
Contrary to the mother's contention with respect to the order in appeal No. 1, " '[v]isitationdecisions are generally left to Family Court's sound discretion, requiring reversal only where thedecision lacks a sound and substantial basis in the record' " (Matter of Nicole J.R. v Jason M.R., 81 AD3d 1450, 1451 [2011],lv denied 17 NY3d 701 [2011]; see Matter of Vieira v Huff, 83 AD3d 1520, 1521 [2011]; Matter of Vasquez v Barfield, 81 AD3d1398 [2011]). Here, there was a sound and substantial basis in the record for the court'sdetermination to continue the prior visitation schedule inasmuch as it was based on a credibilityassessment, and we generally defer to "the court's firsthand assessment of the character andcredibility of the parties" (Matter ofThayer v Thayer, 67 AD3d 1358, 1359 [2009]; see Nicole J.R., 81 AD3d at1451; Matter of Hill v Rogers, 213 [*2]AD2d 1079[1995]).
We reject the mother's contention with respect to the order in appeal No. 2 that the courterred in taking sworn testimony from her before issuing a temporary order of protection (seegenerally Family Ct Act § 828; Matter of Ardis S. v Sanford S., 88 Misc 2d724, 725-726 [1976]; Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A,Family Ct Act § 828, at 286). Finally, we conclude with respect to the order in appeal No.2 that the court properly dismissed the family offense petition inasmuch as the mother failed tomeet her burden of establishing by a fair preponderance of the evidence that the father committedthe family offense of harassment in the second degree (see Family Ct Act § 812[1]; § 832; Matter of Woodruff vRogers, 50 AD3d 1571 [2008], lv denied 10 NY3d 717 [2008]; Matter of Deborah D. v Kathy D., 26AD3d 759 [2006]). "Contrary to the further contention of the mother, the court's assessmentof the credibility of the witnesses is entitled to great weight, and the court was entitled to creditthe testimony of the father over that of the mother" (Matter of Kobel v Holiday, 78 AD3d 1660 [2010]; see Matter of Danielle S. v Larry R.S.,41 AD3d 1188 [2007]). Present—Scudder, P.J., Centra, Fahey, Green and Gorski, JJ.