SIERAK, BERNADETTE v. STARING, KYLE ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1433
CAF 13-02219
PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND SCONIERS, JJ.
IN THE MATTER OF BERNADETTE SIERAK,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
KYLE STARING, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)
MARK A. WOLBER, UTICA, FOR RESPONDENT-APPELLANT.
KOSLOSKY & KOSLOSKY, UTICA (WILLIAM L. KOSLOSKY OF COUNSEL), FOR
PETITIONER-RESPONDENT.
Appeal from a corrected order of the Family Court, Oneida County
(Randal B. Caldwell, J.), entered August 5, 2013 in a proceeding
pursuant to Family Court Act article 6. The corrected order, among
other things, dismissed petitions filed by Kyle Staring.
It is hereby ORDERED that the corrected order so appealed from is
unanimously affirmed without costs.
Memorandum: Respondent father filed numerous petitions alleging
violations of an order of custody and visitation and seeking
modification of that order. After petitioner mother moved to dismiss
those petitions, the father filed an additional petition seeking to
modify the order of custody and visitation, and he relied exclusively
on an affidavit he had previously submitted in opposition to the
mother’s motion to dismiss. In appeal No. 1, the father appeals from
the corrected order pursuant to which Family Court, inter alia,
granted the mother’s motion to dismiss the initial petitions and, sua
sponte, dismissed the final petition in the interest of judicial
economy. The court also directed the mother’s attorney to submit an
affidavit and a proposed order directing payment of attorney’s fees.
In appeal No. 2, the father appeals from the order awarding the mother
$3,200 in attorney’s fees.
Contrary to the father’s contention in appeal No. 1, the court
did not err in sua sponte dismissing the final petition to modify
custody and visitation in the interest of justice and without a
hearing. As noted above, that petition was supported solely by an
affidavit already before the court. We thus agree with the mother
that the allegations contained in that petition, including allegations
of a change of circumstances, were “duly reviewed, argued and
considered by the court” in the context of the mother’s motion to
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CAF 13-02219
dismiss. “[T]he record reflects that, despite ample opportunity to do
so, [the father] failed to present credible evidence to support [his]
allegations against [the mother] and that the court had sufficient
evidence on which to determine that a change of custody [or
visitation] was not in the best interests of the child. In the
absence of the necessary evidentiary showing, the court was not
required to hold a hearing” (Matter of Sheliah M. v Joseph G., 77 AD3d
420, 420; see Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418; see
also Matter of Harry P. v Cindy W., 48 AD3d 1100, 1100).
With respect to appeal No. 2, the father contends that the court
abused its discretion in awarding the mother attorney’s fees because
the mother’s attorney failed to substantially comply with the
requirements of Domestic Relations Law § 237 (b) and 22 NYCRR 1400.3.
That contention, “raised for the first time on appeal, is not properly
before this Court” (Matter of Felix v Felix, 110 AD3d 805, 806; see
Greenfield v Greenfield, 270 AD2d 57, 57; see also Matter of Eby v
Joseph E.S., 28 AD3d 1091, 1092, lv dismissed 7 NY3d 783).
Entered: January 2, 2015 Frances E. Cafarell
Clerk of the Court