| Matter of Luo v Yang |
| 2013 NY Slip Op 00744 [103 AD3d 636] |
| February 6, 2013 |
| Appellate Division, Second Department |
| In the Matter of Feng Lucy Luo,Respondent, v Thomas Yang, Appellant. |
—[*1] Gary E. Lane, Poughkeepsie, N.Y., for respondent. Ronna L. DeLoe, New Rochelle, N.Y., attorney for the children.
In two related custody and visitation proceedings pursuant to Family Court Actarticle 6, the father appeals from (1) an order of the Family Court, Dutchess County(Posner, J.), dated September 27, 2011, (2) a second order of the same court, also datedSeptember 27, 2011 which, after a hearing, inter alia, granted that branch of the mother'spetition which was to modify the custody and visitation provisions of a prior order ofcustody and visitation of the Family Court, Queens County (DePhillips, J.), dated August8, 2003, so as to award her sole legal custody of the parties' children and suspend thefather's visitation rights, (3) a third order of the same court, also dated September 27,2011, which, after a hearing, granted that branch of the mother's petition which was foran order of protection, inter alia, directing him to stay away from the mother and theparties' children until September 26, 2013, and (4) an order of the same court datedDecember 2, 2011, which denied his motion for leave to reargue.
Ordered that the appeal from the first order dated September 27, 2011, is dismissedas abandoned; and it is further,
Ordered that the appeals from so much of the second and third orders datedSeptember 27, 2011, as relate to the parties' daughter are dismissed as academic; and it isfurther,
Ordered that the second and third orders dated September 27, 2011, are affirmedinsofar as reviewed; and it is further,
Ordered that the appeal from the order dated December 2, 2011, is dismissed, as noappeal lies from an order denying reargument; and it is further,
Ordered that one bill of costs is awarded to the mother.[*2]
The appeals from so much of the second andthird orders dated September 27, 2011, as relate to the parties' daughter have beenrendered academic, because the child is now over the age of 18 (see Matter of Weinschneider vWeinschneider, 73 AD3d 1194 [2010]).
The father contends, inter alia, that the Family Court erred in granting that branch ofthe mother's petition which was to modify a prior order of custody and visitation to theextent that it granted her sole legal custody of the parties' remaining minor child, andsuspended his visitation rights.
In order to modify an existing custody or visitation arrangement, there must be ashowing that there has been a change in circumstances such that modification is requiredto protect the best interests of the child (see Family Ct Act § 652; Matter of Abranko v Vargas,26 AD3d 490, 491 [2006]). "In determining the best interest of the child, the courtmust consider the totality of the circumstances" (Matter of Zindle v Hernandez, 26 AD3d 338, 338 [2006];see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Although a child's wishesare not determinative, his or her wishes, age, and maturity should be given considerableweight (see Matter of Cornell vCornell, 8 AD3d 718, 719 [2004]; Koppenhoefer v Koppenhoefer, 159AD2d 113, 117 [1990]; Matter of Eric L. v Dorothy L., 130 AD2d 660, 661[1987]). "The court's determination depends to a great extent upon its assessment of thecredibility of the witnesses and upon the character, temperament, and sincerity of theparents" (Matter of Palm vPalm, 15 AD3d 405, 405 [2005]).
Considering the totality of the circumstances, including the wishes of the subjectchild, which were expressed when the child was 14 years old, the Family Court's awardof sole legal and physical custody of the subject child to the mother, and suspension ofthe father's visitation rights, had a sound and substantial basis in the record (see Matter of Mollet v Mollet,99 AD3d 1007 [2012]; Matter of Krasner v Krasner, 94 AD3d 763 [2012]; Matter of Dorsa v Dorsa, 90AD3d 1046 [2011]).
The father's remaining contentions either are not properly before us, involve mattersdehors the record, or are without merit.
While we decline the request by the attorney for the children to impose sanctions atthis time against the father and his attorney for prosecuting an allegedly frivolous appeal(see 22 NYCRR 130-1.1), the father is warned that future motions or appealsundertaken to harass the mother may subject him to sanctions pursuant to 22 NYCRR130-1.1 (see Dinerman v JewishBd. of Family & Children's Servs., Inc., 55 AD3d 530 [2008]; Enright vVasile, 205 AD2d 732, 733 [1994]). Mastro, J.P., Lott, Austin and Sgroi, JJ., concur.