TUTTLE, RUSTY W. v. TUTTLE, TRACY S.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
248
CAF 15-01315
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.
IN THE MATTER OF RUSTY W. TUTTLE,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
TRACY S. TUTTLE, RESPONDENT-APPELLANT.
BRUCE R. BRYAN, SYRACUSE, FOR RESPONDENT-APPELLANT.
SWARTZ LAW FIRM, WATERTOWN, D.J. & J.A. CIRANDO, ESQS., SYRACUSE
(ELIZABETH deV. MOELLER OF COUNSEL), FOR PETITIONER-RESPONDENT.
MICHELLE M. SCUDERI, ATTORNEY FOR THE CHILD, WATERTOWN.
Appeal from an order of the Family Court, Jefferson County (Diana
D. Trahan, R.), entered April 29, 2015 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, awarded primary
physical residence of the parties’ child to petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent mother appeals from an order that granted
petitioner father’s petition seeking modification of the custody and
visitation provisions of the parties’ judgment of divorce. The mother
contends that Family Court erred in considering events predating the
divorce judgment in determining whether there was a significant change
in circumstances to warrant an inquiry into the best interests of the
child. We reject that contention. Here, the parties’ oral
stipulation regarding custody was incorporated into the judgment of
divorce nine months later. Where a party seeks modification of a
custody order entered upon the parties’ stipulation, the party must
demonstrate a change in circumstances from the date of the
stipulation, and here the stipulation predates the divorce judgment
(see Matter of Hight v Hight, 19 AD3d 1159, 1160). Contrary to the
mother’s contention, the court properly concluded that there had been
a sufficient change in circumstances whether measured from the date of
the oral stipulation or the date of the judgment of divorce (see
generally § 652 [b]; Hight, 19 AD3d at 1160). “[W]hile not
dispositive, the express wishes of older and more mature children can
support the finding of a change of circumstances” (Matter of Burch v
Willard, 57 AD3d 1272, 1273), and here the Attorney for the Child
advised the court of her client’s strong preference to live with her
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CAF 15-01315
father. In addition, the mother’s efforts to undermine the father’s
relationship with the child and his participation in decisions
concerning the child’s welfare constitute a sufficient change in
circumstances to warrant inquiry into the child’s best interests (see
Matter of Cornick v Floreno, 130 AD3d 1170, 1171-1172; Matter of
O’Loughlin v Sweetland, 98 AD3d 983, 984).
Also contrary to the mother’s contention, there is a sound and
substantial basis in the record for the court’s determination that it
is in the child’s best interests to award the father primary physical
residence of the child and to award visitation with the mother (see
generally Eschbach v Eschbach, 56 NY2d 167, 171-174). Although the
court found that both parents were fit and had the financial resources
to support the child, the court determined that the mother’s ability
to foster the child’s intellectual and emotional development was
called into question by her lack of awareness of or concern for the
child’s declining performance in school. Most significantly, the
court determined that the mother attempted to undermine the father’s
relationship with the child, while the father did not engage in such
behavior. “ ‘It is well settled . . . that [a] concerted effort by
one parent to interfere with the other parent’s contact with the child
is so inimical to the best interests of the child . . . as to, per se,
raise a strong probability that [the interfering parent] is unfit to
act as custodial parent’ ” (Matter of LaMay v Staves, 128 AD3d 1485,
1485).
The mother failed to preserve for our review her further
contention that she was denied a fair hearing (see Matter of Tracy v
Tracy, 309 AD2d 1252, 1253), and her contention that the court erred
in awarding unreasonably limited visitation also is not properly
before us because it is based upon matters outside the record on
appeal (see Matter of Gridley v Syrko, 50 AD3d 1560, 1561).
Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court