| Matter of Cobane v Cobane |
| 2014 NY Slip Op 04986 [119 AD3d 995] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 In the Matter of Tina M. Cobane, Appellant, v Brian P.Cobane, Respondent. (And Four Other Related Proceedings.) |
Lisa A. Burgess, Indian Lake, for appellant.
Reginald P. Bedell, Elizabethtown, for respondent.
Maureen McGaw, Canton, attorney for the children.
Lahtinen, J.P. Appeal from an order of the Family Court of St. Lawrence County(Morris, J.), entered February 1, 2013, which, among other things, dismissed petitioner'sapplication, in five proceedings pursuant to Family Ct Act article 6, to modify a priororder of custody and visitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theparents of three daughters (born in 1994, 1996 and 1998). They have been involved inextensive litigation pertaining to the children (see e.g. Matter of Cobane v Cobane, 77 AD3d 1068[2010], lv dismissed 16 NY3d 736 [2011]; Matter of Cobane v Cobane, 57 AD3d 1320 [2008], lvdenied 12 NY3d 706 [2009]). The current proceedings, the first of which wascommenced in July 2011, include applications by both parties to modify the existingcustody and visitation order as well as several petitions by the mother alleging that thefather violated various aspects of the custody and visitation order. Following a hearing atwhich the primary proof was the testimony of the mother and the father, Family Courtdismissed each party's modification petition and also dismissed all of the mother'sviolation petitions. The mother appeals.
Initially, we note that two of the daughters have reached the age of 18 and, thus,issues regarding their custody and visitation are now moot (see Matter of Collins vBrush, 113 AD3d [*2]936, 936 [2014]). With respectto the youngest child, " '[a]n existing custody order will be modified only if thereis a showing of a change in circumstances revealing a real need for the modification inorder to ensure the best interests of the child[ ]' " (Matter of Beane v Curtis, 112AD3d 1005, 1005 [2013], quoting Matter of John O. v Michele O., 103 AD3d 939, 941[2013]). The proof at the hearing showed little change in the parties' animosity towardeach other or in the mother's detrimental conduct toward the child, factors that resulted inthe earlier order. The mother contended that the father had failed to make any effort tofoster the relationship between her and the child, and that he had engaged in conduct thathindered the relationship. Much of the proof turned on credibility issues, and FamilyCourt found that both parents lacked credibility. Little other relevant proof waspresented. According deference to Family Court's assessment of credibility, its findingthat there has not been a change in circumstances warranting modification of the existingorder is supported by a sound and substantial basis in the record (see Matter ofFairbanks v Diehl, 268 AD2d 867, 868 [2000]; see also Matter of Festa v Dempsey, 110 AD3d 1162, 1163[2013]).
"In order to prevail on her violation petition[s], the mother was required to show thatthe father's actions or failure to act defeated, impaired, impeded or prejudiced a right ofthe mother and that the father's alleged violation[s] [were] willful" (Matter of Constantine vHopkins, 101 AD3d 1190, 1191 [2012] [internal quotation marks and citationsomitted]). Resolving the mother's violation petitions rested primarily upon the assessmentof her testimony, which Family Court found lacked credibility. "Giving due deference tothe court's credibility determination" (Matter of Yishak v Ashera, 90 AD3d 1184, 1185 [2011]),we are unpersuaded that Family Court erred in its determination regarding the violationpetitions.
McCarthy, Garry, Lynch and Clark, JJ., concur. Ordered that the order is affirmed,without costs.