Matter of Kylene FF. v. Thomas EE.

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 31, 2016 518088
516953
________________________________
In the Matter of KYLENE FF.,
Respondent,
v
MEMORANDUM AND ORDER
THOMAS EE.,
Appellant.
(And Other Related Proceedings.)
________________________________
Calendar Date: February 19, 2016
Before: Peters, P.J., Garry, Rose, Lynch and Clark, JJ.
__________
Allen E. Stone, Vestal, for appellant.
Michelle I. Rosien, Philmont, for respondent.
__________
Garry, J.
Appeals (1) from an order of the Family Court of Broome
County (Lambert, J.), entered February 6, 2013, which, among
other things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody and visitation, and (2) from an order of said court,
entered June 10, 2013, which denied respondent's motion for,
among other things, reconsideration.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of two children (born in
1999 and 2001). The mother resides in the Town of Triangle,
Broome County, and the father resides in Pennsylvania. Pursuant
to an order entered upon consent in August 2009, the parties had
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joint legal custody of the children and shared physical custody
on an alternating weekly basis. Beginning in July 2011, the
parties commenced a series of modification and violation
proceedings.1 Following fact-finding and Lincoln hearings, as
pertinent here, Family Court awarded sole legal custody and
primary physical custody to the mother, with two hours of
supervised parenting time to the father each week. The father
thereafter moved for renewal and a new hearing on the issues of
custody and visitation, and for recusal. The court denied the
motion. The father appeals from the custody order and from the
order denying his motion.
A party seeking to modify an existing custody order must
first demonstrate an intervening change in circumstances
sufficient to warrant review of the best interests of the
children (see Matter of Schlegel v Kropf, 132 AD3d 1181, 1182
[2015]; Matter of Menhennett v Bixby, 132 AD3d 1177, 1179
[2015]). Here, Family Court did not make an express finding as
to whether a change in circumstances had occurred, but this Court
has the authority to conduct an independent review of the record
to make that determination (see Matter of Clouse v Clouse, 110
AD3d 1181, 1183 [2013], lv denied 22 NY3d 858 [2014]; Matter of
Casarotti v Casarotti, 107 AD3d 1336, 1337 [2013], lv denied 22
NY3d 852 [2013]). The evidence establishes that, during the time
period leading up to the current proceedings, the parties were
unable to communicate without conflict. The parties testified
that they did not speak to one another, and the mother's husband
and the father's girlfriend testified that they acted as
intermediaries and communicated with each other regarding
visitation and other issues affecting the children. The
relationship between the mother and the father had become so
hostile that several exchanges of the children had resulted in
1
A September 2010 order of custody that provided sole
legal custody to the mother and scheduled parenting time to the
father was in effect when the underlying proceedings were
commenced. However, Family Court vacated that order during the
pendency of these proceedings and reverted to the prior August
2009 order.
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disagreements that required police intervention. This evidence
clearly demonstrates that the parties' relationship had
deteriorated to the point that they were no longer able to
cooperate for the benefit of the children and, thus, the
requisite change in circumstances had occurred (see Matter of
Virginia C. v Donald C., 114 AD3d 1032, 1033 [2014]; Nolan v
Nolan, 104 AD3d 1102, 1104 [2013]; Matter of Williams v Williams,
66 AD3d 1149, 1150-1151 [2009]).
Turning to the best interests of the children, factors to
be taken into account include "the parents' ability to maintain
the stability of the children, their respective home
environments, past performance, relative fitness, ability to
provide for the overall well-being of the children and
willingness to foster a positive relationship with the other
parent" (Matter of LaFountain v Gabay, 69 AD3d 994, 995 [2010];
see Matter of Blagg v Downey, 132 AD3d 1078, 1079-1080 [2015];
Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041-1042
[2014]). The effect of domestic violence on the children's best
interests must also be taken into account (see Matter of Brown v
Akatsu, 125 AD3d 1163, 1165 [2015]; Matter of Chris X. v Jeanette
Y., 124 AD3d 1013, 1014 [2015]). Several witnesses described
incidents when the father had behaved aggressively or violently
toward the children or other people in the children's presence.
Family Court credited the mother's testimony that the father had
pushed the older child to the ground several times while
attending a football game and, on another occasion, had engaged
in domestic violence toward the mother in the children's presence
that bruised her arm, caused $1,600 in damage to her vehicle, and
resulted in an order of protection against the father. There was
also testimony that, in September 2011, the father tried to force
one of the children to sit with him rather than the mother at a
football game by shouting and swearing at the child and
"grabb[ing]" his arm; the police were called and the father was
thereafter convicted of disorderly conduct. A child protective
services caseworker for the Broome County Department of Social
Services testified that she investigated this incident pursuant
to Family Ct Act § 1034 and indicated a report for inadequate
guardianship, although she acknowledged on cross-examination that
the equivalent child protective agency in Pennsylvania had found
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the report to be unsubstantiated. She stated that the children
told her that they did not want to see the father, that he was
"mean" and that he often hit them. Several witnesses likewise
testified that the children did not want to visit with the father
and refused to do so after the September 2011 incident. The
mother testified that the father did not see or communicate with
the children after this incident, stopped attending their school
and athletic events, and did not contact them at Christmas. She
further testified that when the father had scheduled parenting
time on Wednesday nights with the children under a September 2010
order that was later vacated, he refused to exercise the
weeknight visits because "it was a waste of his time."
The father provided contrary testimony. He stated, among
other things, that the two children frequently had physical
fights with each other and that he had been trying to pull the
children apart when the mother saw him apparently pushing the
older child to the ground. He further testified that he had not
been as aggressive or violent in the other incidents as the
mother's witnesses claimed, wanted to spend as much time with the
children as possible, did not want supervised visitation, and had
failed to exercise the Wednesday night visits only because the
distance between his home and the mother's home made them
impractical. He acknowledged, however, that he had not been
attending supervised visits that were awarded to him under a
temporary order in effect at the time of the hearing. The
father's girlfriend and a teenager who was one of several
children residing in the father's home testified in support of
the father and described his home as stable, loving and free of
violence. However, this Court defers to Family Court's
credibility assessments (see Matter of Kimberly CC. v Gerry CC.,
86 AD3d 728, 730-731 [2011]) and, here, we find a sound and
substantial basis in the record for the determination that it was
in the children's best interests to award sole custody to the
mother and to limit the father's parenting time to weekly
supervised visits (see Matter of Rosario WW. v Ellen WW., 309
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AD2d 984, 986-987 [2003]).2
Family Court did not err in denying the father's motion for
renewal, a rehearing and recusal. To prevail upon a motion for
renewal, a party must demonstrate the existence of
"newly-discovered evidence which, if introduced at the trial,
would probably have produced a different result and which could
not have been discovered in time to move for a new trial" (CPLR
5015 [a] [2]). Here, the father argued that the court relied
upon the caseworker's indicated child protective report of
inadequate guardianship arising from the September 2011 incident,
but that this report was subsequently overturned upon the
father's administrative appeal. However, assuming without
deciding that the administrative reversal – which did not occur
until after the hearing and, therefore, was not in existence at
that time – constitutes newly-discovered evidence for this
purpose (see Matter of Monasterska v Burns, 121 AD3d 902, 902
[2014]; Pezenik v Milano, 137 AD2d 748, 748-749 [1988], lv
dismissed 72 NY2d 909 [1988]), the father did not meet his burden
to prove that the result of the proceedings would probably have
been different if the reversal had been introduced during the
hearing. The record demonstrates that the court did not rely
solely or even primarily upon the report in evaluating the
underlying incident. Instead, among other things, the court
heard direct testimony describing the event from witnesses who
were present and received into evidence a photograph of the
father holding the child's arm taken at the scene, as well as the
certificate of conviction reflecting the father's conviction for
disorderly conduct arising from the incident. Thus, the
indicated report "played only a de minimus, secondary role" in
the court's determination (Matter of Richard SS., 55 AD3d 1001,
1002 [2008]). We find no abuse of discretion in the denial of
the father's motion for renewal and a new hearing (see Matter of
Troy SS. v Judy UU., 69 AD3d 1128, 1134-1135 [2010], lv dismissed
and denied 14 NY3d 912 [2010]; Matter of Jonathan B., 11 AD3d
2
Although not dispositive, the attorney for the children,
who represented them both in Family Court and upon appeal,
supported the court's custody and visitation determinations.
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290, 290 [2004]; see also Matter of Jennifer G. v Benjamin H., 84
AD3d 1433, 1436 [2011]), nor did the court abuse its discretion
in refusing to recuse itself (see Matter of Adams v Bracci, 100
AD3d 1214, 1215-1216 [2012]; Matter of Barney v Van Auken, 97
AD3d 959, 960 [2012], lv denied 20 NY3d 856 [2013]).
Peters, P.J., Rose, Lynch and Clark, JJ., concur.
ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court