| Matter of Bond v Bond |
| 2012 NY Slip Op 02358 [93 AD3d 1100] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Noah P. Bond, Sr., Appellant, v Eileen M. Bond,Respondent. |
—[*1] Jo M. Katz, Troy, for respondent. Sandra M. Colatosti, Albany, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.),entered November 16, 2010, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents ofsix children. The three youngest children, two daughters (born in 1994 and 1995) and a son (bornin 2001), are the subject of the proceeding on appeal. In November 2004, the parties stipulated toa custody arrangement by which the mother had sole legal and primary physical custody of thethree children, with extended alternate weekend visitation with the father. This agreement waslater incorporated into a custody order in January 2005 and the judgment of divorce in March2007. In April 2010, the father filed a petition for modification seeking, among other things, jointlegal and primary physical custody of the younger daughter and joint legal and shared physicalcustody of the son. Following trial, Family Court dismissed the petition on the ground that thefather had failed to establish a sufficient change in circumstances. The father appeals.
"The party seeking modification of a custody order must first prove that there has been asufficient change in circumstances since the entry of the prior order to require the court toreexamine the issue of custody" (Matterof Clark v Ingraham, 88 AD3d 1079, 1079 [2011][*2][citations omitted]; see Matter of Fox v Grivas, 81 AD3d 1014, 1015 [2011]). Here, thefather's petition alleged that the two younger children wished to spend more time with him, thatthe mother was verbally and physically abusive, and that the mother disappointed the youngerdaughter by failing to bring her to an out-of-state award ceremony.
As to the events surrounding the award ceremony, we defer to Family Court's credibilitydeterminations (see Matter of Jeker vWeiss, 77 AD3d 1069, 1070 [2010]; Matter of Schermerhorn v Breen, 8 AD3d 709, 710 [2004]) and, asthe allegations of abuse were unsubstantiated and the children's preferences standing alone didnot establish a sufficient change in circumstances, there is a sound and substantial basis in therecord supporting Family Court's determination (see Matter of Sharyn PP. v Richard QQ., 83 AD3d 1140, 1143[2011]; Matter of Witherow vBloomingdale, 40 AD3d 1203, 1204-1205 [2007]). The trial testimony and decisionreferenced events occurring prior to the existing custody order. As the father argues, relying uponthose prior events would be improper in assessing whether there had been a change incircumstances (see Matter of Bouwens vBouwens, 86 AD3d 731, 732 [2011]). Upon review, however, we find that the analysisdoes not rely upon these extraneous references.
Finally, we reject the father's contention that Family Court's error in failing to afford him theopportunity to make a closing statement requires reversal (see CPLR 4016 [a]). At theconclusion of the fact-finding hearing, the father's counsel stated that he wished to make a shortclosing statement only if the mother did so, and the court indicated that arrangements would bemade following the Lincoln hearing. The mother subsequently submitted a writtenclosing statement; the father neither responded to this submission nor requested a furtherappearance, and more than four weeks passed before the decision was rendered. Consideringthese circumstances, and that the court was fully familiar with the facts of the case as well as theparties' arguments, no reversible error occurred (compare Matter of Saggese v Steinmetz, 83 AD3d 1144, 1145[2011], lv denied 17 NY3d 708 [2011]; Lohmiller v Lohmiller, 140 AD2d 497,498 [1988]).
Peters, J.P., Rose, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.