| Matter of Revet v Revet |
| 2011 NY Slip Op 08857 [90 AD3d 1175] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Hillary M. Revet, Appellant, v Justin J.Revet, Respondent. |
—[*1] Marsha K. Purdue, Glens Falls, for respondent. Gerald J. Ducharme, Canton, attorney for the child.
Peters, J. Appeal from an amended order of the Supreme Court (Main Jr., J.), enteredSeptember 2, 2010 in St. Lawrence County, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to hold respondent in willful violation of a priorcustody order.
Pursuant to a June 2010 order, petitioner (hereinafter the mother) was awarded sole legal andprimary physical custody of the parties' son (born in 2009), with respondent (hereinafter thefather) having multiple short periods of parenting time each week.[FN*]The order also incorporated an order of protection that directed the father to, among other things,refrain from assault, harassment, intimidation, disorderly conduct or any criminal offense againstthe mother. Shortly thereafter, the mother commenced this violation proceeding alleging that thefather [*2]engaged in a verbal and physical confrontation with herduring an exchange of the child on June 14, 2010. A hearing was held on that petition and,following the close of testimony, Supreme Court rendered a decision from the bench in which itfound that the father had willfully violated the custody order. The court also modified the priororder by, among other things, providing the father with a block of parenting time each week,which served to significantly increase his visitation with the child. The mother now appeals.
We agree with the mother's assertion that Supreme Court erred in awarding the fatherincreased visitation. The only petition before the court was the mother's violation petition, whichdid not include a request to modify the father's parenting time. At no time prior to or during thehearing did any of the parties request a modification of the father's visitation schedule, and thetestimony at the hearing was narrowly focused on the June 14, 2010 incident which formed thebasis of the violation petition. It was only after the close of all testimony that Supreme Courtindicated its intent to alter the father's visitation schedule, in order to reduce the opportunity forconfrontation between the parents. Even then, the court stated that its "purpose isn't to expand. . . [the father's] parenting time," but to compact it to a longer block of time. Yet,inexplicably, the court did just that. Given the prejudice to the mother in that she neither hadnotice that modification of the father's parenting time would be at issue in this proceeding nor anopportunity to present evidence as to the propriety of such a modification, we must reverse thatpart of Supreme Court's order granting the father increased visitation (see Matter of Myers v Markey, 74AD3d 1344, 1345 [2010]; Matter ofOtsego County Dept. of Social Servs. v Mathis, 71 AD3d 1298, 1299 [2010]; Matter of Terry I. v Barbara H., 69AD3d 1146, 1149 [2010]; see also Matter of Williams v Taylor, 234 AD2d 809, 810[1996]; Matter of Nakis-Batos v Nakis, 191 AD2d 443, 444 [1993]; compare Matter of Heintz v Heintz, 28AD3d 1154, 1155 [2006]; Matter of Fitzgerald v Fitzgerald, 68 AD2d 996, 997[1979]). Furthermore, given the limited nature of the hearing on the violation petition, SupremeCourt did not have sufficient information before it to enable it to determine whether an increasein the father's parenting time would serve the child's best interests (see Dwyer v De LaTorre, 260 AD2d 773, 774 [1999]; see also Matter of Twiss v Brennan, 82 AD3d 1533, 1535 [2011]).In light of our determination, we need not address the mother's remaining contention.
Mercure, A.P.J., Spain, Rose and Kavanagh, JJ., concur. Ordered that the amended order ismodified, on the law, without costs, by reversing so much thereof as granted respondentincreased parenting time with the child, and, as so modified, affirmed.
Footnote *: Specifically, the father wasgranted parenting time for a six-hour period on Mondays, on Tuesdays from 5:00 P.M. toWednesdays at 9:15 A.M., and on Saturdays from 5:00 P.M. to Sundays at 12:00 P.M. Onalternating weeks, the father received additional parenting time on Thursday from 5:00 P.M. toFriday at 7:30 A.M.