| Matter of Constantine v Hopkins |
| 2012 NY Slip Op 08371 [101 AD3d 1190] |
| December 6, 2012 |
| Appellate Division, Third Department |
| In the Matter of Elisa A. Constantine, Appellant, v Peter Hopkins,Respondent. |
—[*1] Kathleen M. Spann, Greene, for respondent. Ronald Lanouette Jr., Binghamton, attorney for the child.
Stein, J. Appeal from an amended order of the Family Court of Broome County (Pines, J.),entered December 20, 2011, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to hold respondent in violation of a prior order ofvisitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents ofone child (born in 2001). In 2007, Family Court entered an order upon a stipulation of the parties,awarding joint legal custody of the child, with physical custody to the father. The mother wasgranted, as relevant here, visitation with the child every other weekend. The exchange of thechild was to take place at the police station in the Village of Endicott, Broome County, and themother was ordered to "make a good faith effort to contribute to the cost of transportation." InApril 2011, the mother filed a petition alleging that the father was in contempt of the 2007 orderby failing to drop the child off for visitation. Thereafter, both parties filed petitions seeking tomodify the prior order, with the mother requesting that she be granted primary custody of thechild and the father requesting that the mother be ordered to share responsibility for transportingthe child for visitation.[*2]
Following a hearing held on the mother's violationpetition, Family Court dismissed the petition, concluding that the evidence did not support afinding that the father had willfully violated the prior order. In addition, Family Court modifiedthe 2007 order, sua sponte, by directing that all visitation take place in the City of Ithaca,Tompkins County, where the father and the child reside, at a location and time designated by thefather, and that all transportation costs related to visitation be paid by the mother. After receivingFamily Court's decision, both parties withdrew their modification petitions. The mother nowappeals.
In order to prevail on her violation petition, the mother was required to show that the father'sactions or failure to act "defeated, impaired, impeded or prejudiced" a right of the mother (Matter of Aurelia v Aurelia, 56 AD3d963, 964 [2008]; accord Matter ofYishak v Ashera, 90 AD3d 1184, 1184-1185 [2011]; Matter of Omahen v Omahen, 64AD3d 975, 977 [2009]) and that the father's alleged violation was willful (see Matter of Holland v Holland, 80AD3d 807, 808 [2011]; Matter of Omahen v Omahen, 64 AD3d at 977). Here, themother testified that the father stopped bringing the child to visitation from September 2010 untilJuly 2011. The father testified that the mother has never contributed to the cost of transportationand that, after he transported the child for visitation on September 24, 2010 and the mother failedto show up, he asked that she help with the costs. According to the father, he could not afford totransport the child without financial help from the mother, who does not have a driver's license orown a car. When the mother refused the father's request to assist with the cost of transportationand thereafter failed to contact him concerning visitation or the transportation costs, the fatherstopped driving the child to visitation. The parties did not speak again until Christmas Day 2010,when the child called the mother. Even after that conversation, the mother failed to contact thefather to arrange visitation. However, the visitation resumed in July 2011, after the fathercontacted the mother following a court appearance. Family Court credited the father's testimonyregarding the financial impact of the transportation costs and attributed the missed visitations tothe mother's unwillingness to contribute to those costs and her general lack of interest in thechild's life. Giving deference to Family Court's credibility determinations (see Matter of Cobane v Cobane, 57AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]), we find that the recordevidence supports the finding that the father did not willfully violate the prior order (see Matter of Columbia County Dept. ofSocial Servs. v Kristin M., 92 AD3d 1101, 1103 [2012]; Matter of Omahen vOmahen, 64 AD3d at 977).
We agree, however, with the mother's contention that Family Court erred in modifying theprior order. The court specifically advised the parties at the commencement of the hearing that itwould be limited to the mother's violation petition against the father. In light of the fact that themother did not have notice that the terms of her visitation would be an issue during thisproceeding, the modification of the prior order must be reversed (see Matter of Revet v Revet, 90 AD3d1175, 1176 [2011]; Matter of Myersv Markey, 74 AD3d 1344, 1345 [2010]). Further, given that the subject of the hearingwas the father's alleged violation of the prior order, Family Court did not have sufficientinformation to determine whether the mother's ability to contribute to the transportation costs andwhether modifying the terms of her visitation was in the child's best interests (see Matter ofRevet v Revet, 90 AD3d at 1177; Matter of Myers v Markey, 74 AD3d at 1345).
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the amended orderis modified, on the law, without costs, by reversing so much thereof as modified the prior orderof custody and visitation, and, as so modified, affirmed.