Matter of Merwin v. Merwin , 29 N.Y.S.3d 632 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 520576
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In the Matter of DAVID G.
MERWIN,
Appellant,
v MEMORANDUM AND ORDER
KAMIE JO MERWIN,
Respondent.
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Calendar Date: February 11, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.
__________
Christopher A. Pogson, Binghamton, for appellant.
Sandra M. Colatosti, Albany, for respondent.
David Spector, Endicott, attorney for the child.
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Egan Jr., J.
Appeal from an order of the Family Court of Broome County
(Pines, J.), entered February 6, 2015, which dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of visitation.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the divorced parents of a son (born
in 1999). By order entered on consent in September 2009, Family
Court awarded the mother sole custody of the subject child and
his sibling; the father was awarded supervised visitation with
the subject child once a month – with such visitations to occur
at and be supervised by The Family & Children's Society
(hereinafter the agency) in Broome County. Pursuant to the terms
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of Family Court's order, the father was to be responsible for the
costs associated with such visits.
In July 2014, the father, who by his own admission has not
seen the subject child since the child was two years old,
commenced this proceeding seeking to modify the terms of the 2009
visitation order. Although the father's petition did not request
specific relief, it was revealed at the ensuing fact-finding
hearing that the father was seeking supervised visitation in a
public place so that he did not have to pay the agency a fee
(purportedly $35 per visit) in order to see his son. Family
Court dismissed the father's application, finding, among other
things, that he had failed to demonstrate a change in
circumstances since entry of the 2009 order. This appeal by the
father ensued.
We affirm. As the party seeking to modify a prior order of
visitation, the father bore the initial burden of showing that a
change in circumstances has occurred since the entry thereof that
is sufficient to warrant Family Court undertaking a best
interests analysis in the first instance; assuming that
requirement is met, the father then must show that modification
of the prior order is necessary in order to ensure the child's
continued bests interests (see Matter of Sparbanie v Redder, 130
AD3d 1172, 1172-1173 [2015]; cf. Matter of Gerber v Gerber, 133
AD3d 1133, 1136 [2015], lv denied ___ NY3d ___ [Mar. 31, 2016]).
The record reflects that the father has bipolar disorder,
schizophrenia and attention deficit disorder and suffers from
panic attacks four or five times per month. As a result, the
father is disabled and has been receiving various Social Security
benefits since some point in 2011. Although he is under a
physician's care and has been prescribed medications for his
conditions, the father has opted instead to self-medicate with
marihuana – smoking one to three joints each day depending upon
the severity of his symptoms. By his own admission, the father
"never showed up" at the agency to complete the required intake
process after he was awarded supervised visitation in 2009.
According to the father, the sole reason that he did not
exercise the supervised visitation granted to him in the 2009
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order was his inability to pay the $35 per visit fee purportedly
due to the agency. The father's conclusory claims of indigency,
however, are unsupported by the record and – arguably – are
belied by his apparent ability to purchase sufficient quantities
of marihuana to "treat" his various disorders. Further, although
questioned on this point at the hearing, the father did not offer
any meaningful explanation for his delay in seeking to modify the
underlying visitation order.1 Accordingly, after reviewing the
record as a whole, we find that the father failed to discharge
his initial burden of demonstrating a sufficient change in
circumstances to trigger a best interests inquiry. Were we to
reach a contrary conclusion in this regard, we nonetheless would
agree with Family Court's further finding that modification of
the 2009 order was not in the subject child's best interests.
The father suffers from serious and, to our analysis, untreated
medical conditions and, by his own admission, has not seen his
son – now age 16 – since the child was two years old. Under
these circumstances, any expansion of the father's visitation
rights is unwarranted.
Finally, we cannot fault Family Court for opting not to
conduct a Lincoln hearing in this matter. Although "a Lincoln
hearing is the preferred manner for ascertaining a child's
wishes" (Matter of Battin v Battin, 130 AD3d 1265, 1266 n 2
[2015]), such a hearing is not mandatory (see id. at 1266) –
particularly where, as here, the record reflects that the hearing
itself may do more harm than good (see Matter of Thomas v
Osborne, 51 AD3d 1064, 1068 [2008]; Posporelis v Posporelis, 41
AD3d 986, 991 [2007]). Notably, the attorney for the child
advised Family Court that the child was "very distraught" and
that he was not requesting a Lincoln hearing because he believed
that it "would be even more traumatic" for the child to have to
participate in that process (see Matter of DeRuzzio v Ruggles, 88
AD3d 1091, 1092 [2011]). In light of counsel's representations
in this regard, we discern no abuse of discretion in the court's
decision to forgo a Lincoln hearing.
1
The father testified that he was awarded Social Security
benefits in 2011, but he did not commence the instant
modification proceeding until July 2014.
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Garry, J.P., Lynch, Devine and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court