Matter of Gerber v. Gerber , 34 N.Y.S.3d 781 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 14, 2016 521046
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In the Matter of KIMBERLY A.
GERBER,
Appellant,
v MEMORANDUM AND ORDER
DANIEL P. GERBER,
Respondent.
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Calendar Date: May 31, 2016
Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
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Theresa M. Suozzi, Saratoga Springs, for appellant.
Mark A. Kassner, Glenville, attorney for the children.
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Devine, J.
Appeal from an order of the Family Court of Saratoga County
(Jensen, J.), entered March 13, 2015, which, sua sponte,
dismissed petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the divorced parents of three
teenage boys (born between 1998 and 2002). Pursuant to an
October 2014 order of custody, the father was granted sole legal
and physical custody of the children and all contact between the
mother and the children was suspended for a period of six months,
with therapeutic visitation to resume after that time (see Matter
of Gerber v Gerber, 133 AD3d 1133, 1136-1139 [2015], lv denied 27
NY3d 902 [2016]). Three months later, the mother petitioned pro
se for modification of the 2014 order alleging, among other
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things, that the children were suffering emotional and physical
distress as a result of having been placed in a new school
district during the middle of the school year. Family Court
dismissed the petition without taking testimony or scheduling a
hearing, noting that the concerns raised by the mother in her
petition had either been addressed by the court in its 2014 order
and/or were expressly caused by her own behavior. The mother now
appeals.
At the outset, the parties' eldest child turned 18 during
the pendency of this appeal, rendering moot any issues with
respect to custody of him (see Matter of McCullough v Harris, 119
AD3d 992, 993 [2014]; Matter of Collins v Brush, 113 AD3d 936,
936 [2014]). With respect to the remaining two children, "[a]s
the party seeking to modify an existing custodial arrangement,
the mother was required to demonstrate, as a threshold, that
there has been a change in circumstances since the prior custody
order . . . to warrant a review of the issue of custody to ensure
the continued best interests of the children" (Matter of Harrell
v Fox, 137 AD3d 1352, 1354 [2016] [internal quotation marks and
citations omitted]). A hearing is generally necessary but is not
required where the party seeking the modification fails to make a
sufficient evidentiary showing to warrant a hearing or,
alternatively, where no hearing is requested and Family Court has
sufficient information to undertake a comprehensive independent
review of the children's best interests (see Matter of Harrell v
Fox, 137 AD3d at 1354; Matter of Schnock v Sexton, 101 AD3d 1437,
1437 [2012]).
Here, even according the mother every favorable inference,
as we must (see Matter of Harrell v Fox, 137 AD3d at 1354; Matter
of Ford v Baldi, 123 AD3d 1399, 1400 [2014]; Matter of Tod ZZ. v
Paula ZZ., 113 AD3d 1005, 1006 [2014]; see also Family Ct Act §
165 [a]; CPLR 3026), we find that Family Court did not err in
dismissing the mother's petition without a hearing (see Matter of
Lowe v Bonelli, 129 AD3d 1135, 1137 [2015]). The mother alleges
that the father's decision to move the children to a new school
district in the middle of the school year prompted the children
to suffer from emotional stress and trauma but, under the
circumstances of this case, such allegations fail to demonstrate
a change in circumstances. The father was granted sole legal and
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physical custody of the children in 2014 primarily because of
overwhelming evidence that the mother was manipulating the
children in ongoing efforts to alienate them from the father (see
Matter of Gerber v Gerber, 133 AD3d at 1136-1139).1 Family Court
accordingly expected that awarding the father custody might cause
the children to experience certain short-term trauma given that
state of affairs, but found that the mother's efforts at parental
alienation would be even more damaging in the long term. The
mother nevertheless sought to modify the 2014 order only three
months after it was issued, essentially asserting that the
anticipated short-term trauma had actually occurred. Thus, in
light of these facts, we find that Family Court did not err in
dismissing the mother's petition without conducting a
fact-finding hearing (see Matter of McIntosh v Clary, 129 AD3d
1392, 1393 [2015]; Matter of Marquis v Washington, 86 AD3d 753,
754 [2011]).
Lahtinen, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court
1
As in the previous appeal before this Court, we
acknowledge that Family Court's determination is not in accord
with the recommendation made by the attorney for the children.
We also note that the children's wishes are informative rather
than dispositive, particularly given the mother's efforts to
alienate them from the father (see Matter of Gerber v Gerber, 133
AD3d at 1138; Matter of Burola v Meek, 64 AD3d 962, 966 [2009]).