| Matter of Warren v Miller |
| 2015 NY Slip Op 07366 [132 AD3d 1352] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Katherine D. Warren, Respondent, vChristopher J. Miller, Appellant. (Appeal No. 1.) |
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of counsel), forrespondent-appellant.
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), forpetitioner-respondent.
Lorenzo Napolitano, Attorney for the Child, Rochester.
Appeal from an amended order of the Family Court, Monroe County (Julie AnneGordon, R.), entered January 25, 2013 in a proceeding pursuant to Family Court Actarticle 6. The amended order, among other things, granted petitioner sole custody of thesubject child.
It is hereby ordered that the amended order so appealed from is unanimouslyaffirmed without costs.
Memorandum: Petitioner-respondent mother commenced the proceeding in appealNo. 1 to modify the parties' existing visitation schedule with respect to the parties' child.Family Court sua sponte determined, however, that the existing joint custodyarrangement was unworkable and entered an amended order awarding sole custody andprimary physical residence to the mother, and visitation and access torespondent-petitioner father. The father appeals from that amended order in appeal No. 1.In appeal No. 2, the father appeals from an order dismissing his order to show cause andpetition to modify the amended order in appeal No. 1. We now affirm in appeal No.1.
The father contends in appeal No. 1 that the court lacked jurisdiction to determinethe issue of custody. We reject that contention. Even without an application for solecustody by one of the parties, the court herein had the authority to address the issue ofcustody inasmuch as the parties were "adequately apprised prior to the hearing thatcustody was at issue, and . . . had a sufficient opportunity to present anytestimony and evidence relevant to the issue of custody" (Matter of Heintz v Heintz, 28AD3d 1154, 1155 [2006]). "Once [the court] determine[s] that joint custody [is] notfeasible, it [becomes] incumbent upon [the court] to determine a custodial arrangementbased upon the best interests of the child[ ] despite the absence of a petition definitivelyseeking sole custody" (Matter ofMahoney v Regan, 100 AD3d 1237, 1237-1238 [2012] [internal quotationmarks omitted], lv denied 20 NY3d 859 [2013]; see Heintz, 28 AD3d at1154-1155; Matter of Miller vOrbaker, 17 AD3d 1145, 1145-1146 [2005], lv denied 5 NY3d 714[2005]).
In the instant case, the record establishes that the court informed the parties on twooccasions prior to the hearing that sole custody would be at issue. In addition, during thehearing, and before the father engaged in cross-examination or called his first witness,the court specifically warned the father that he could lose custody if he failed to presentevidence contradicting the mother's testimony. We note that the father demonstrated hisunderstanding of the court's intent to determine the issue of custody by referencing itduring his opening statement, by presenting testimony and evidence in support of hisrequest therefor and, in his [*2]summation, bycharacterizing the proceeding as "a contested custody matter" and specifically requestingthat he be awarded sole custody.
We reject the father's further contention in appeal No. 1 that the court's custodydetermination lacks a sound and substantial basis in the record. "Generally a court'sdetermination regarding custody and visitation issues, based on its first-hand assessmentof the credibility of the witnesses after an evidentiary hearing, is entitled to great weightand will not be set aside unless it lacks an evidentiary basis in the record" (Matter of Dubuque vBremiller, 79 AD3d 1743, 1744 [2010] [internal quotation marks omitted]; see Matter of Marino v Marino,90 AD3d 1694, 1695 [2011]). Here, we conclude that the court's determination issupported by the requisite evidentiary basis. Notably, the record establishes that thefather interfered with the child's enrollment in educational programming and that,although the child was diagnosed with a behavioral disorder, the father refused toacknowledge the disorder and to administer the child's prescribed medication. Wetherefore see no reason to disturb the court's determination. The father's contentionsraised for the first time in his reply brief are not properly before us (see Matter of Rossborough vAlatawneh, 129 AD3d 1537, 1538 [2015]), and we decline to take judicialnotice of items submitted by the father outside of the record on appeal.
In light of our determination in appeal No. 1, we dismiss the appeal in appeal No. 2as moot. Present—Centra, J.P., Peradotto, Lindley, Whalen and DeJoseph, JJ.