MILLER, NICOLE v. MILLER, DAVID ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
643.1
CA 16-00174
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.
NICOLE MILLER, NOW KNOWN AS NICOLE BOGGS,
PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
DAVID MILLER, DEFENDANT-APPELLANT.
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GARY MULDOON, ESQ., ATTORNEY FOR THE CHILDREN,
APPELLANT.
(APPEAL NO. 1.)
GARY MULDOON, ATTORNEY FOR THE CHILDREN, ROCHESTER, APPELLANT PRO SE.
MICHAEL D. SCHMITT, ROCHESTER, FOR DEFENDANT-APPELLANT.
MAUREEN A. PINEAU, ROCHESTER, FOR PLAINTIFF-RESPONDENT.
Appeals from an order of the Supreme Court, Monroe County (John
M. Owens, A.J.), entered February 1, 2016. The order, insofar as
appealed from, dismissed defendant’s application, by order to show
cause, to modify the judgment of divorce by granting defendant sole
custody of the parties’ children and vacated the temporary order that
granted defendant custody of the parties’ children, with supervised
visitation with plaintiff.
It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, defendant’s application
filed on June 17, 2015 and the temporary order signed on June 18, 2015
are reinstated, and the matter is remitted to Supreme Court, Monroe
County, for further proceedings on the application.
Memorandum: Defendant father sought, by order to show cause, to
modify the judgment of divorce, which incorporated but did not merge
the parties’ agreement providing for joint custody of their two
children, with physical placement with the father and extensive
visitation with plaintiff mother. Supreme Court granted the father
temporary custody of the parties’ two children, with supervised
visitation with the mother, and the matter was referred to a judicial
hearing officer (JHO) to hear and determine, inter alia, the father’s
application to modify the judgment of divorce. The JHO granted the
mother’s motion to dismiss the father’s application with prejudice at
the close of his proof, and the court thereafter vacated the temporary
order and “fully restored” the provisions of the prior agreement as
incorporated but not merged in the judgment of divorce. This Court
-2- 643.1
CA 16-00174
granted the motion of the Attorney for the Child (AFC) to stay the
order pending appeal. We agree with the father and the AFC that the
JHO erred in granting the mother’s motion and thus that the court
erred in vacating the temporary order and restoring the parties’
custody agreement at this juncture.
“It is well established that alteration of an established custody
arrangement will be ordered only upon a showing of a change in
circumstances which reflects a real need for change to ensure the best
interest[s] of the child[ren] . . . Where, as here, [the mother] moves
to dismiss a modification proceeding at the conclusion of the
[father’s] proof, the court must accept as true the [father’s] proof
and afford the [father] every favorable inference that reasonably
could be drawn therefrom” (Matter of McClinton v Kirkman, 132 AD3d
1245, 1245-1246 [internal quotation marks omitted]). Accepting the
father’s proof as true (see id. at 1246), we conclude that the father
established, inter alia, that the older child called 911 at the
mother’s suggestion, allegedly because he did not want to go to the
father’s house, and was taken by emergency personnel for a mental
health assessment and released to the father’s custody; that the
mother told a neighbor on several occasions that the father had
physically and/or sexually abused the children; that the mother
discussed the court proceedings with the children; and that the court-
appointed psychologist determined that the mother’s mental health
issues affected her ability to co-parent and that the stress caused by
the older child’s behavior affected the mother’s ability to parent the
children effectively. We conclude that the father met his “ ‘burden
of demonstrating a sufficient change in circumstances to require
consideration of the welfare of the child[ren]’ ” (id.).
We also agree with the father and the AFC that the JHO erred in
refusing to admit in evidence the report of the court-appointed
psychologist on the ground that the report was not the “best evidence”
because the psychologist was available to testify. The “ ‘oft-
mentioned and much misunderstood’ best evidence rule simply requires
the production of an original writing where its contents are in
dispute and sought to be proven” (Schozer v William Penn Life Ins. Co.
of N.Y., 84 NY2d 639, 643 [emphasis added]), and thus that rule is not
applicable here (see generally Chamberlain v Amato, 259 AD2d 1048,
1048-1049). We reject the contention of the AFC that the court erred
in requiring the admission in evidence of three cellular telephones as
the best evidence of the content of text messages between, inter alia,
the parties, particularly in view of the father’s failure to offer in
evidence an authenticated “copy-and-paste document of [the] text
message conversation[s]” (People v Agudelo, 96 AD3d 611, 611-612, lv
denied 20 NY3d 1095). We have considered the remaining contentions of
the father and the AFC and conclude that none requires any further
corrective action by this Court.
Entered: July 1, 2016 Frances E. Cafarell
Clerk of the Court