| Matter of Vanita UU. v Mahender VV. |
| 2015 NY Slip Op 05978 [130 AD3d 1161] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Vanita UU., Respondent, v MahenderVV., Appellant. (And Other Related Proceedings.) |
D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel), for appellant.
McNamee, Lochner, Titus & Williams, PC, Albany (Bruce J. Wagner ofcounsel), for respondent.
Kim C. Lawyer, Delmar, attorney for the child.
Egan Jr., J. Appeals (1) from two orders of the Family Court of Albany County(Maney, J.), entered December 14, 2012, which, among other things, granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof custody, (2) from an order of said court, entered December 14, 2012, which grantedpetitioner's application, in a proceeding pursuant to Family Ct Act article 8, for an orderof protection, (3) from an order of said court, entered December 14, 2012, whichdismissed respondent's application, in a proceeding pursuant to Family Ct Act article 6,to hold petitioner in violation of a prior custody order, and (4) from an order of saidcourt, entered December 21, 2012, which denied respondent's request for counselfees.
The parties are the divorced parents of a child (born in 2001). Pursuant to the parties'2003 judgment of divorce, the child's primary physical placement was to be withpetitioner (hereinafter the mother), and respondent (hereinafter the father) was awardedparenting time with the child on alternating weekends, in addition to other specifiedperiods. The judgment of divorce did not make an express award of legal custody,directing instead that the day-to-day decisions relative to the child would be made by theparty in whose custody the child was at that point in time—with finaldecision-making authority resting with the mother. In May 2010, the parties entered intoa stipulation, which was reduced to a court order, permitting the mother to [*2]relocate from Onondaga County to Albany County; primaryphysical custody of the child—and final decision-makingauthority—remained with the mother, and a detailed visitation schedule wasestablished for the father.
Insofar as is relevant to these appeals, the mother filed a modification petition inAugust 2010 and, in January 2011, filed a family offense petition against the father.Thereafter, in April 2011, the father filed a modification petition and, in October 2012,filed a violation petition contending, among other things, that the mother was denyinghim telephone access to the child and had failed to secure counseling for the child. In theinterim, beginning in November 2011 and ending in August 2012, Family Courtconducted a lengthy hearing as to the parties' respective modification petitions and themother's family offense petition. Thereafter, by separate orders entered December 14,2012, Family Court, among other things, awarded the mother sole legal and physicalcustody of the child with supervised visitation to the father, granted an order ofprotection in favor of the mother based upon the father's commission of the familyoffense of harassment in the second degree and, sua sponte, dismissed the father'sviolation petition. Additionally, by order entered December 21, 2012, Family Courtdenied the father's request for counsel fees. These appeals by the father ensued.
Initially, we have no quarrel with Family Court's decision to award sole legal andphysical custody of the child to the mother. Although the mother's modification petitioncould have been drafted with greater clarity, she clearly testified at the fact-findinghearing that she was seeking sole legal and physical custody of the child. Hence, we aresatisfied that, "despite the [arguable] absence of a petition definitively seeking solecustody . . .[,] the [father] was clearly on notice that both legal andresidential custody were at issue" (Matter of Kowatch v Johnson, 68 AD3d 1493, 1495[2009], lv denied 14 NY3d 704 [2010] [internal quotation marks and citationomitted]; accord Matter ofMahoney v Regan, 100 AD3d 1237, 1238 [2012], lv denied 20 NY3d859 [2013]; see Matter ofHeintz v Heintz, 28 AD3d 1154, 1155 [2006]; compare Matter of Hirtz vHirtz, 108 AD3d 712, 714-715 [2013]; Matter of Grant v Terry, 104 AD3d 854, 854 [2013]; Matter of Revet v Revet, 90AD3d 1175, 1176 [2011]; Matter of Joseph A. v Jaimy B., 81 AD3d 1219, 1220[2011]; Matter of Terry I. vBarbara H., 69 AD3d 1146, 1149 [2010]; Matter of Adams v Bracci, 61 AD3d 1065, 1067 [2009],lv denied 12 NY3d 712 [2009])—particularly in view of the fact that hehad filed his own modification petition, thereby placing the issue of custody squarelybefore Family Court.
Turning to the merits, "[a] parent seeking to modify an existing custody order bearsthe burden of demonstrating a sufficient change in circumstances since the entry of theprior order to warrant modification thereof in the child's best interests" (Matter of Bailey v Blair, 127AD3d 1274, 1275 [2015] [internal quotation marks, brackets and citations omitted];accord Matter of Dornburgh vYearry, 124 AD3d 949, 950 [2015]). Here, there is no question that the parties'relationship has deteriorated to the point where they no longer are able to work togetherin a cooperative fashion for the sake of their child's welfare, and the case law makes clearthat discord of this magnitude constitutes a sufficient change in circumstances to warranta best interests inquiry (seeMatter of Paul A. v Shaundell LL., 117 AD3d 1346, 1348 [2014], lvdismissed and denied 24 NY3d 937 [2014]; Matter of Sonley v Sonley, 115 AD3d 1071, 1072 [2014];Matter of Virginia C. v DonaldC., 114 AD3d 1032, 1033 [2014]). In resolving that inquiry, a court mustconsider a number of factors, including each "parent['s] past performance, relativefitness, ability to guide and provide for the child['s] overall well-being, and thewillingness of each parent to foster a relationship with the other parent" (Matter of Lawrence vKowatch, 119 AD3d 1004, 1005 [2014] [internal quotation marks and citationsomitted]; see Matter of Bailey v Blair, 127 AD3d at 1275-1276; Matter of Joshua UU. v MarthaVV., 118 AD3d 1051, 1052 [2014]). Upon review, "Family Court's findings andcredibility determinations are accorded great deference and [*3]will not be disturbed unless they lack a sound andsubstantial basis in the record" (Matter of Gilbert v Gilbert, 128 AD3d 1286, 1287 [2015][internal quotation marks and citations omitted]; see Matter of Bailey v Blair, 127AD3d at 1276).
Here, Family Court authored a well-reasoned decision wherein it set forth—insubstantial detail—the father's documented efforts to, among other things,denigrate the mother and undermine her role in the child's life, as well as the father'sconsistent inability to place his child's needs ahead of his own. Without belaboring thepoint, suffice it to say that the record contains ample support for Family Court's findingsin this regard, including the report authored by and testimony adduced from ElizabethSchockmel, the clinical and forensic psychologist who examined the parties and thechild. In her written evaluation, Schockmel noted that, during the course of herinterviews with the father, he consistently displayed a "tone of superiority" and devotedsignificant time to "belittling and devaluing" the mother. Schockmel offered similartestimony at trial, stating that the father expressed the belief that he was the only parentthat the child needed and was "exceedingly focused on convincing [the child] that his lifewith his mother was not good, that his life in Albany [County] was not good, and that forhim to be a happy and healthy little boy[,] he needed to be back in [Onondaga County]with [his father]."
As for the parties' respective parenting abilities and priorities, Schockmel opined thatthe mother's primary focus was to achieve some level of "peace and harmony" in thechild's life and that she possessed a "genuine[ ] desire[ ] for the stress and conflict in [thechild's] life to decrease." Schockmel further testified that, despite all that had transpired,the mother recognized the importance of the father's presence in the child's life and "still[was willing to] work to have [the child] . . . have regular time with hisfather." The father, on the other hand, was, in Schockmel's view, far more concernedwith having control over the child than he was in reaching a resolution that would be inthe child's best interests—a conclusion borne out by the father's statement that he"would have nothing to do with [the child]" if the child was allowed to remain in AlbanyCounty in the custody of the mother. As for the father's ability to foster a meaningfulrelationship between the child and his mother, Schockmel recounted the father's stateddesire to pay someone $10,000 to marry the mother—together with an additional$5,000 per year for each year that such marriage continued—as "it would be worthit to have [the mother] out of his hair" and, presumably, out of the child's life.
In addition to the foregoing, the mother testified at length regarding, among otherthings, the father's willingness to share information and details regarding the parties'custody litigation with the child, his repeated and unfounded reports to local lawenforcement officials and child protective services relative to the child's well-being andhis attempts to undermine her efforts to obtain mental health counseling for thechild—actions that, the record reflects, impacted the child's academic performanceand clearly were inconsistent with his overall best interests. Family Court found themother's testimony to be entirely credible—a determination that we see no reasonto disturb—and, based upon our review of the record as a whole, we find thatFamily Court's decision to award sole legal and physical custody of the child to themother is supported by a sound and substantial basis in the record. We reach a similarconclusion with regard to Family Court's decision to impose supervised visitation for thefather. Again, without reiterating the extensive testimony offered as to the father'scontrolling demeanor, limited discretion, demonstrated lapses in parental judgment andapparent unwillingness and/or inability "to discharge his . . . parentalresponsibility properly" (Matterof Raychelle J. v Kendell K., 121 AD3d 1206, 1208 [2014] [internal quotationmarks and citations omitted]), we are satisfied that Family Court appropriatelydetermined that supervised visitation was in the child's best interests.
The remaining arguments raised by the father do not warrant extended discussion.[*4]Although the underlying order of protection expiredby its own terms in December 2014, this aspect of the father's appeal is not moot for tworeasons: first, despite the expiration of the order of protection, the finding that the fathercommitted a family offense has "enduring consequences" (Matter of Sasha R. v AlbertoA., 127 AD3d 567, 567 [2015]; accord Matter of Ramona A.A. v Juan M.N., 126 AD3d611, 611 [2015]); additionally, the father also separately appealed from the orderfinding that he had committed a family offense.
Turning to the merits, and insofar as is relevant here, "[a] person is guilty ofharassment in the second degree when, with intent to harass, annoy or alarm anotherperson . . . [h]e or she strikes, shoves, kicks or otherwise subjects such otherperson to physical contact, or attempts or threatens to do the same" (Penal Law§ 240.26 [1] [emphasis added]; accord Matter of Christina KK. v Kathleen LL., 119 AD3d1000, 1002 [2014]). "The requisite intent may be inferred from the surroundingcircumstances" (Matter of ShanaSS. v Jeremy TT., 111 AD3d 1090, 1091 [2013], lv denied 22 NY3d862 [2014] [citations omitted]), and whether a family offense has been established by "afair preponderance of the evidence" (Family Ct Act § 832) presents afactual issue for Family Court's resolution (see Matter of Christina KK. v KathleenLL., 119 AD3d at 1001). Here, the mother testified that, in January 2011, the fathertelephoned her and, during the course of the ensuing conversation, stated, "I will huntyou down and take care of you, you bitch, you'll be sorry." Contrary to the father'sassertion, physical proximity to the victim is not an element of the underlying offense,and this single incident is sufficient to support Family Court's finding that the fathercommitted the family offense of harassment in the second degree (see Matter of Salazar vMelendez, 97 AD3d 754, 755 [2012], lv denied 20 NY3d 852[2012]).
As for the dismissal of the father's violation petition, even assuming that FamilyCourt erred in dismissing the petition—in part—upon res judicata grounds,we nonetheless are persuaded that such petition was properly dismissed. Finally, upondue consideration of all of the attendant circumstances, we do not find that Family Courtabused its discretion in denying the father's request for counsel fees. The father'sremaining contentions, to the extent not specifically addressed, have been examined andfound to be lacking in merit.
Garry, J.P., Rose and Lynch, JJ., concur. Ordered that the orders are affirmed,without costs.