| Matter of Gonnard v Guido |
| 2013 NY Slip Op 05455 [108 AD3d 709] |
| July 24, 2013 |
| Appellate Division, Second Department |
| In the Matter of Stephanie Gonnard,Respondent, v James Guido, Appellant. |
—[*1] Assaf & Siegal PLLC, Albany, N.Y. (Michael D. Assaf of counsel), for respondent. Richard J. Strassfield, White Plains, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from (1) so much of an order of the Family Court,Westchester County (Morales-Horowitz, J.), entered September 11, 2012, as granted thatbranch of the mother's motion which was for an award of attorney's fees and expensespursuant to 22 NYCRR 130-1.1 in the sum of $1,687.50, and (2) so much of an order ofthe same court entered December 24, 2012, as granted the mother's petition to modify aprior order of custody so as to award the mother sole legal and residential custody of thesubject child.
Ordered that the orders are affirmed insofar as appealed from, without costs ordisbursements.
The parties were divorced in Florida in 2008 and a parenting plan with regard to theparties' child, who was born in 2004, was issued by a Florida court in 2009, while theparties both resided in Florida. In November 2010, the Florida court granted the father'spetition to relocate to New York with the child, and a time-sharing schedule wasincorporated into the order. The mother thereafter moved to California. In March 2012,the mother filed a petition in the Family Court, Westchester County, seeking, inter alia,modification of the parenting plan and order issued by the Florida court. The FamilyCourt granted the mother's petition, and awarded the mother sole legal and residentialcustody of the child. The court also granted that branch of the mother's motion whichwas for an award of attorney's fees and expenses pursuant to 22 NYCRR 130-1.1
" 'Since any custody determination depends to a great extent upon the hearing court'sassessment of the credibility of the witnesses and of the character, temperament, andsincerity of the parties, its findings are generally accorded great deference and will not bedisturbed unless they lack a sound and substantial basis in the record' " (Matter of O'Loughlin vSweetland, 98 AD3d 983, 984 [2012], quoting Matter of Skeete v Hamilton,78 AD3d 1187, 1188 [2010]).
Generally, to modify an existing custody arrangement, there must be a showing of achange in circumstances such that modification is required to protect the best interests ofthe child (see Matter of O'Loughlin v Sweetland, 98 AD3d at 983; Matter of Sparacio vFitzgerald, 73 AD3d 790 [2010]; Matter of Russell v Russell, 72 AD3d 973, 974 [2010]; Trinagel v Boyar, 70 AD3d816 [2010]). Here, the [*2]Family Court'sdetermination that there had been a change of circumstances sufficient to warrant achange of custody, based on evidence that the father interfered with the relationshipbetween the mother and child by, inter alia, failing to comply with the visitation andcommunication provisions of the prior court orders, was supported by a sound andsubstantial basis in the record (see Matter of Griffin v Nikiea Moore-James, 104 AD3d685, 686 [2013]; Matter ofCadet v Lamour, 86 AD3d 538, 539 [2011]; Matter of Caravella v Toale, 78 AD3d 828 [2010]; Matter of McClurkin v Bailey,78 AD3d 707, 707-708 [2010]).
The Family Court providently exercised its discretion in denying the father'sapplication for a forensic evaluation (see Matter of Solovay v Solovay, 94 AD3d 898, 900[2012]; Matter of Rhodie vNathan, 67 AD3d 687 [2009]). Moreover, the court did not err in disallowing,on hearsay grounds, the father's testimony regarding certain statements made by the child(cf. Family Ct Act § 1046 [a] [vi]), and properly denied the father'sapplication to compel the testimony of the attorney for the child (see Matter ofRebecca B., 227 AD2d 315 [1996]; see also CPLR 3101 [c]; 4503). Anyerror by the court in precluding the testimony of a school psychologist proffered by thefather was harmless (see CPLR 2002; Geary v Church of St. Thomas Aquinas, 98 AD3d 646, 647[2012]; Rodriguez v New YorkCity Tr. Auth., 81 AD3d 804, 804-805 [2011]; Sweeney v Peterson, 24 AD3d984, 985 [2005]). Additionally, the father waived any objection to personaljurisdiction (see Matter ofEl-Sheemy v El-Sheemy, 35 AD3d 738, 739 [2006]; Matter of Borggreen vBorggreen, 13 AD3d 756, 757 [2004]; Matter of Fallon v Fallon, 4 AD3d 426, 427 [2004]).
Moreover, the Family Court providently exercised its discretion in awarding themother an attorney's fee in the sum of $1,687.50 as a sanction pursuant to 22 NYCRR130-1.1 (see Degtiarev vDelecia-Kenny, 105 AD3d 691, 692 [2013], lv denied 21 NY3d859 [2013]; Matter of Parkside Ltd. Liab. Co.,294 AD2d 582, 584 [2002]; Matter of De Ruzzio v De Ruzzio, 287 AD2d 896[2001]).
The father's remaining contentions are without merit. Rivera, J.P., Balkin, Leventhaland Cohen, JJ., concur.