| Matter of Dornburgh v Yearry |
| 2015 NY Slip Op 00260 [124 AD3d 949] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Shaun W. Dornburgh, Appellant, vJean M. Yearry, Respondent. (And Six Other RelatedProceedings.) |
Rosemarie Richards, Gilbertsville, for appellant.
Joseph Nalli, Fort Plain, for respondent.
Paul G.J. Madison, Stamford, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Otsego County (Burns, J.),entered September 9, 2013, which, among other things, granted respondent's application,in a proceeding pursuant to Family Ct Act article 6, to modify a prior order ofcustody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a daughter (born in 2008). Pursuant to an order entered on consent inSeptember 2010, the parties were awarded joint legal and shared residential custody ofthe child. Thereafter, in April 2012, the parties agreed to a "corrected" order of custodyand visitation, which made certain adjustments to each party's parenting time with thechild. Notwithstanding these adjustments, the mother and the father continued to sharephysical custody of the child—on an essentially equal basis—each week,subject to certain additional periods of parenting time awarded to the mother.
Beginning in November 2012, the parties filed a series of petitions seeking to modifyand/or hold each other in violation of the corrected order of custody. In addition, themother filed a habeas corpus petition, and the attorney for the child—citing themother's unresolved mental health and alcohol dependency issues—filed amodification petition on the child's behalf seeking to have the mother's parenting timecurtailed and supervised. A combined fact-finding [*2]hearing ensued, at the conclusion of which Family Court,among other things, found the father to twice be in violation of the prior order of custodyand awarded the mother sole legal and physical custody of the child. This appeal by thefather ensued.
During the course of the fact-finding hearing, the father admitted that he refused toreturn the child to the mother in November 2012 and, further, that he denied the mother'srequests for additional Saturday visitations as outlined in the prior custody order.Inasmuch as the father's own testimony establishes that he failed to comply with therelevant provisions of the prior custody order (cf. Matter of Paul A. v Shaundell LL., 117 AD3d 1346,1348 [2014], lv dismissed and denied 24 NY3d 937 [2014]; Matter of Yeager v Yeager,110 AD3d 1207, 1210 [2013]), we discern no basis upon which to disturb FamilyCourt's finding that the father was in willful violation thereof. Accordingly, Family Courtproperly granted the mother's violation petitions.
We reach a contrary conclusion, however, with respect to Family Court's resolutionof the parties' competing modification petitions. "A parent seeking to modify an existingcustody order bears the burden of demonstrating a sufficient change in circumstancessince the entry of the prior order to warrant modification thereof in the child[ ]'s bestinterests" (Matter of Paul A. v Shaundell LL., 117 AD3d at 1348 [internalquotation marks and citations omitted]; accord Matter of Clark v Hart, 121 AD3d 1366, 1367[2014]). Although the requisite change in circumstances may be found to exist where"the parties' relationship has deteriorated to a point where there is no meaningfulcommunication or cooperation for the sake of the child" (Matter of Paul A. vShaundell LL., 117 AD3d at 1348; see Matter of DiMele v Hosie, 118 AD3d 1176, 1177[2014]; Matter of Sonley vSonley, 115 AD3d 1071, 1072 [2014]), the record before us falls short ofestablishing that the mother and father's relationship has become so acrimonious as topreclude an award of joint custody.
To be sure, the father refused to return the child to the mother after the mother wasreleased from an inpatient psychiatric facility in November 2012. The father testified,however, that he made that decision after consulting with both his attorney and theattorney for the child (cf. Matterof Nelson v Perea, 118 AD3d 1057, 1059 [2014]). Although the father alsoarbitrarily imposed a two-week notice requirement when entertaining the mother'srequests for additional periods of visitation (for which he properly was admonished) andthe parties often squabbled over transportation issues, the record as a whole simply failsto reflect that the previously agreed-upon joint custody arrangement no longer is feasible.Indeed, the father testified that he and the mother had amicably discussed and resolvedissues relative to the child's medical appointments, vacation schedule and her anticipatedenrollment in school, and nothing in the mother's testimony suggests that the parties'relationship has deteriorated to the point where they are unable to maintain even "amodicum of communication and cooperation" for the sake of their child (Matter ofBlanchard v Blanchard, 304 AD2d 1048, 1049 [2003]; accord Ehrenreich v Lynk, 74AD3d 1387, 1390 [2010]; compare Matter of Paul A. v Shaundell LL., 117AD3d at 1348; Matter of Greenev Robarge, 104 AD3d 1073, 1075 [2013]; Matter of Spiewak v Ackerman, 88 AD3d 1191, 1192[2011]; Matter of Ferguson vWhible, 55 AD3d 988, 990-991 [2008]).
Further, we note that the father's stated basis for seeking sole custody stemmed notfrom an expressed or demonstrated inability to get along with the mother but, rather,from his concerns regarding the mother's stability in light of her documented—andundisputed—mental health and alcohol dependency issues. Similarly, although themother—both in the context of her modification petition and during the course ofher testimony at the hearing—requested that Family Court alter the physicalcustody arrangement, she did not ask that Family Court award her sole custody of thechild (see Matter of Lynch vTambascio, 1 AD3d 816, 817 [2003]). Under [*3]these circumstances, and inasmuch as the parties otherwisefailed to demonstrate a sufficient change in circumstances to warrant modification of theprior custody order, Family Court erred in awarding sole legal and physical custody tothe mother.[FN*]Although we are—consistent with the child's best interests—reinstating theaward of joint legal custody (see Ehrenreich v Lynk, 74 AD3d at 1389-1390;Matter of Blanchard v Blanchard, 304 AD2d at 1049; Matter of Darrow vBurlingame, 298 AD2d 651, 652 [2002]), in view of the length of time that haselapsed since entry of the underlying order and the relative lack of record evidence as to,among other things, the parties' respective employment, financial and living situations,we deem it prudent to remit this matter to Family Court for the fashioning of anappropriate physical custody/visitation arrangement. The parties' remaining contentions,to the extent not specifically addressed, have been examined and found to be lacking inmerit.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as awarded sole legaland physical custody to respondent; the parties are awarded joint legal custody andmatter remitted to the Family Court of Otsego County for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.
Footnote *:While by no meansdeterminative, the attorney for the child argues on appeal that Family Court's decision toterminate joint custody lacks a sound and substantial basis in the record.