| Matter of Smith v O'Donnell |
| 2013 NY Slip Op 04852 [107 AD3d 1311] |
| June 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of James E. Smith, Appellant, v JenniferO'Donnell, Respondent. (And Another Related Proceeding.) |
—[*1] Pomeroy, Armstrong, Casullo & Monty, LLP, Cortland (Victoria J. Monty ofcounsel), for respondent. Margaret McCarthy, Ithaca, Attorney for the Child.
McCarthy, J. Appeals from two orders of the Family Court of Cortland County(Campbell, J.), entered December 22, 2011, which, among other things, grantedrespondent's application, in two proceedings pursuant to Family Ct Act article 6, tomodify a prior order of custody.
The parties, who are the parents of one child (born in 2008), entered into a stipulatedcustody order providing for joint custody and equal physical placement. The stipulationoccurred in January 2011, but the order was not entered until March 24, 2011. On March22, 2011, petitioner (hereinafter the father) commenced the first of these proceedingsseeking to modify the order by providing him "full temporary custody" and requiringsupervised visitation for respondent (hereinafter the mother). The mothercross-petitioned for sole custody. At the conclusion of a fact-finding hearing, FamilyCourt dismissed the father's petition and awarded [*2]sole custody to the mother, with specified visitation to thefather. The father appeals.[FN*]
Family Court did not err in considering evidence of events that occurred before theentry of the prior custody order. Although the inquiry as to whether a substantial changein circumstances has occurred should be limited to occurrences since the date of the priorcustody order (see Matter ofGuerra v Balistreri, 49 AD3d 646, 647 [2008]), a best interests inquiry isbroader and may include other facts that give the court a view of the totality of thecircumstances and family dynamics, including proof that relates to either party's fitness asa parent (see Porcello vPorcello, 80 AD3d 1131, 1134 [2011]; Matter of Gardner v Gardner, 69 AD3d 1243, 1244 [2010];see also Matter of Hayward vCampbell, 104 AD3d 1000, 1001 n [2013]; Matter of Shirley v Shirley, 101 AD3d 1391, 1394 [2012]).As less weight is afforded to a stipulated order, admission of evidence concerningprevious behavior or events is especially proper where no prior plenary hearing has beenheld and the prior order was issued on consent (see Matter of Smith v Barney, 101 AD3d 1499, 1501[2012]). Here, Family Court did not abuse its broad discretion in determining the scopeof the proof (see Porcello v Porcello, 80 AD3d at 1134; Matter of Tarrance v Mial, 22AD3d 965, 966 [2005]).
Family Court did not err in finding a substantial change in circumstances andawarding sole custody to the mother. Shortly after the January 2011 stipulation, the fatherunilaterally terminated all direct communication with the mother. He blocked her phonenumber from his cell phone so that her calls would not ring through and she could onlyleave voice mail and text messages. He acknowledged that he never called her back andonly responded to some of her text messages. The father refused to personally exchangethe child at a location other than the police station, and instead had his mother performall exchanges so that the father did not have to interact with the mother. The father alsoviolated the prior order by not providing the mother with the opportunity to care for thechild when the father was unavailable, and he stated that he would continue thisbehavior. On the other hand, the mother attempted to maintain communication with thefather and provided him with regular notifications. Given the complete breakdown ofcommunication and the parties' inability to cooperate with regard to parenting decisions,all of which arose subsequent to the stipulation that resulted in the prior order, the proofestablished a substantial change in circumstances rendering joint custody inappropriate(see Matter of Coley vSylva, 95 AD3d 1461, 1462 [2012]; Matter of Williams v Williams, 66 AD3d 1149, 1150-1151[2009]). Accepting Family Court's credibility determinations and the supported factualfinding that the father was solely responsible for the breakdown in communication, anaward of sole custody and primary physical placement to the mother was in the child'sbest interests.
Finally, Family Court did not assume the role of an advocate by asking a fewquestions of a witness to assist in laying a foundation for the admission of certainbusiness records, as that questioning merely facilitated the expeditious progress of thehearing (see Matter of SamanthaK., 61 AD3d 1322, 1324 [2009]; Matter of Eshale O., 260 AD2d 964,964 [1999]; see also People v Yut Wai Tom, 53 NY2d 44, 57-58 [1981]).[*3]
Rose, J.P., Spain and Egan Jr., JJ., concur.Ordered that the orders are affirmed, without costs.
Footnote *: Although the fatherappeals from two orders, one disposing of each party's petition, he has abandoned theappeal from the order dismissing his petition due to his failure to raise any argumentsabout it in his brief.