| Matter of Yeager v Yeager |
| 2013 NY Slip Op 06762 [110 AD3d 1207] |
| October 17, 2013 |
| Appellate Division, Third Department |
| In the Matter of Shelly Yeager, Appellant, v MichaelYeager, Respondent. (And Another Related Proceeding.) |
—[*1] Kimberly Craig, Ballston Spa, attorney for the child.
Stein, J.P. Appeal from an order of the Family Court of Saratoga County (Jensen, J.),entered June 18, 2012, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody andvisitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are thedivorced parents of a daughter (born in 2001). Their May 2009 judgment of divorce,which incorporated but did not merge the parties' separation agreement, awarded theparties joint legal custody, with primary physical custody to the mother and specifiedparenting time to the father that included, among other things, alternate weekends andovernight on Wednesdays.
In February 2010, due to disagreements between the parties regarding vacationschedules, they each filed a modification petition in Family Court. As a result, in April2010, Family Court (Abramson, J.) issued a consent order which, among other things,directed the parties to be flexible in exercising parenting time. Notwithstanding thatorder, the parties continued to have difficulties surrounding the father's parenting timeand, in particular, the [*2]Wednesday overnights and the"right of first refusal" provision[FN1] contained in the separation agreement. Consequently, the mother filed anotherpetition—which was subsequently amended—seeking to modify the father'sparenting time. Specifically, the mother requested the court to, among other things,change the Wednesday visits from an overnight to a dinner visit and eliminate the rightof first refusal. For his part, the father filed a violation petition alleging that the motherhad refused to comply with the parenting schedule and the right of first refusal.
After a trial, Family Court (Jensen, J.) found that the mother had failed to establish asufficient change in circumstances since the April 2010 order and dismissed her amendedmodification petition. In regard to the father's petition, the court found that the motherhad willfully violated the terms of the judgment of divorce with respect to the father'sparenting time and the right of first refusal and ordered, among other things, make-upparenting time to the father during the 2012 Thanksgiving and Christmas recesses andduring the summer of 2012.[FN2] The court also fined the mother $1,000 for her "egregious conduct" and issued adirective that the child not be permitted to have her cell phone while she was with thefather. The mother now appeals.
The threshold determination in an application to modify an existing visitation orderis whether there has been a sufficient change in circumstances reflecting a real need forchange to insure the continued best interests of the child (see Nolan v Nolan, 104 AD3d1102, 1103 [2013]; Matterof Brown v Erbstoesser, 85 AD3d 1497, 1499 [2011]; Matter of Bond v MacLeod, 83AD3d 1304, 1305 [2011]). Although a child's wishes can support the finding of achange in circumstances, they are but one factor and are not determinative (see Matter of Casarotti vCasarotti, 107 AD3d 1336, 1336 [2013]; Matter of Brown vErbstoesser, 85 AD3d at 1499; compare Matter of Bond v Bond, 93 AD3d 1100, 1101[2012]). Here, the mother's primary argument in support of her petition is that the childprefers to spend less time with the father. In that regard, the mother and the attorney forthe child argue that Family Court erred by failing to conduct a Lincoln hearingwith the child. While the decision whether to conduct such a hearing lies within thecourt's discretion (see Matter ofJessica B. v Robert B., 104 AD3d 1077, 1078 [2013]; Matter of DeRuzzio v Ruggles,88 AD3d 1091, 1092 [2011]; Matter of Walker v Tallman, 256 AD2d 1021,1022 [1998], lv denied 93 NY2d 804 [1999]), it is often the preferable course(see Matter of Jessica B. v Robert B., 104 AD3d at 1078). In this case, the courtoriginally indicated that it intended to speak with the child and later reiterated thisposition. While we can assume that the court ultimately decided that an interview withthe child was not warranted or appropriate, the record is bereft of any articulation orexplanation for such decision.[*3]
Additionally, we cannot ascertain from the recordwhether Family Court failed to consider the child's wishes with respect to spending timewith her father or whether it considered the child's wishes, but rejected them as a basisfor a modification. While Family Court stated in regard to the violation petition that thechild's wishes did not excuse the mother from complying with the existing orders, it isnot clear to what extent, if any, this conclusion played in the court's determinationregarding the modification petition. To be sure, the wishes of this 12-year-old child were"at minimum, entitled to consideration" (Matter of Rivera v LaSalle, 84 AD3d 1436, 1439 [2011][internal quotation marks and citation omitted]), and the record does not reflect whethersuch consideration was given to the child's wishes. As a result, and because we concludethat a Lincoln hearing is called for under the circumstances here (see Matter of Flood v Flood,63 AD3d 1197, 1199 [2009]), we must remit the modification petition to FamilyCourt.[FN3]
We discern no error in Family Court's finding that the mother willfully violated thevisitation provisions of the divorce judgment. " 'To sustain a civil contempt finding basedupon the violation of a court order, it must be established that there was a lawful courtorder in effect that clearly expressed an unequivocal mandate, that the person whoallegedly violated the order had actual knowledge of its terms, and that his or her actionsor failure to act defeated, impaired, impeded or prejudiced a right of the moving party.The violation must be established by clear and convincing evidence' " (Matter of Joseph YY. v TerriYY., 75 AD3d 863, 867 [2010], quoting Matter of Aurelia v Aurelia, 56 AD3d 963, 964 [2008]; accord Matter of Constantine vHopkins, 101 AD3d 1190, 1191 [2012]).
Here, it is undeniable that the mother prevented the father from exercising hisparenting time with the child on numerous occasions (see Matter of Keefe v Adam,85 AD3d 1225, 1227 [2011]). For example, the mother admitted that she unilaterallydecided that the child would stay with her for various holidays that fell within the father'sparenting time, such as the 2010 Thanksgiving holiday and several days during the 2010Christmas break. She also admitted that she violated the visitation order by picking upthe child from school during the father's parenting time and preventing the father fromexercising his Wednesday overnight visitation on a number of occasions. During thesummer of 2011, the mother violated the right of first refusal provision by rejecting thefather's offer to care for the child while she was at work and needed childcare.[FN4] There is no question that the mother was aware of her obligations under the judgment ofdivorce and, despite that knowledge, interfered with the father's parenting time.Notwithstanding the mother's excuses and explanations, based upon the trial testimonyand giving deference to Family Court's determination that the mother was not credible(see Matter of Holland vHolland, 80 AD3d 807, 808 [2011]), we are satisfied that the mother's willfulviolation of the visitation order was established by clear and convincing evidence(see id. at 808; Matter of Joseph YY. v Terri YY., 75 AD3d at 867).[*4]
Although we generally defer to Family Court'sdetermination of the appropriate sanction for a willful violation (see Matter of Sherman v Cook,90 AD3d 1170, 1171 [2011]), we find the $1,000 fine imposed on the mother to bean improvident exercise of discretion under the circumstances here. Considering that thefather clearly and unequivocally stated that he was requesting a monetary sanction onlyas an alternative to make-up parenting time, and that the court awarded the fathersubstantial make-up time that sufficiently addressed the mother's conduct, we concludethat no fine should have been imposed. Inasmuch as the father's violation petition did notinclude a request that the child be prohibited from possessing a cell phone during hisparenting time, we similarly conclude that Family Court should not have made such adirection (see Matter ofAlexander v Alexander, 62 AD3d 866, 867 [2009]).
The mother's remaining claims do not require extended discussion. With respect tothe mother's contention that Family Court exhibited bias in favor of thefather—who appeared pro se—by, among other things, interjecting itselfinto the mother's presentation of her case, we note that "[c]ourts are obligated to 'keep therespective parties focused upon a succinct presentation of evidence relevant to the issuesto be decided [and to] . . . insure an orderly and expeditious trial' " (London v London, 21 AD3d602, 602 [2005], quoting Douglas v Douglas, 281 AD2d 709, 710-711[2001]; accord Matter of Bush vBush, 74 AD3d 1448, 1449 [2010], lv denied 15 NY3d 711 [2010]).While we agree with the mother that Family Court played an extensive role in thequestioning of the witnesses, upon our careful review of the record, we are not persuadedthat the court exhibited a bias against the mother so as to deprive her of a fair trial. To theextent not specifically addressed herein, the mother's remaining contentions have beenconsidered and found to be without merit.
McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as (1) dismissed the amendedmodification petition, (2) imposed a fine in the amount of $1,000 against petitioner, and(3) directed removal of the child's cell phone before respondent's parenting time; matterremitted to the Family Court of Saratoga County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.
Footnote 1: According to thisprovision, the parties are required to "provide alternative accommodations for the childin the event that they are unable to care for the child during the time that they are to haveher. They shall however first offer to the other party the right to watch the child duringthose specified time periods if such time period is greater than [four] hours."
Footnote 2: For the summer of2012, Family Court directed that the father have parenting time each week from Sundayevening through Friday evening, and that the mother have parenting time each weekend.
Footnote 3: Nonetheless, we agreewith Family Court that none of the additional factors cited by the mother otherwiseestablishes a sufficient change in circumstances that reflects a real need for modificationof the visitation order.
Footnote 4: The father is a schoolteacher and was available to care for the child while the mother worked. However, themother hired a child-care provider and then, inexplicably, expected the father to share inthe cost thereof.