The opinion
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 9, 2015 517379
________________________________
In the Matter of VANITA UU.,
Respondent,
v
MEMORANDUM AND ORDER
MAHENDER VV.,
Appellant.
(And Other Related Proceedings.)
________________________________
Calendar Date: May 28, 2015
Before: Garry, J.P., Egan Jr., Rose and Lynch, JJ.
__________
D.J. & J.A. Cirando, Syracuse (John A. Cirando of counsel),
for appellant.
McNamee, Lochner, Titus & Williams, PC, Albany (Bruce J.
Wagner of counsel), for respondent.
Kim C. Lawyer, Delmar, attorney for the child.
__________
Egan Jr., J.
Appeals (1) from two orders of the Family Court of Albany
County (Maney, J.), entered December 14, 2012, 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, (2) from an order of said court, entered December 14,
2012, which granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 8, for an order of protection,
(3) from an order of said court, entered December 14, 2012, which
dismissed respondent's application, in a proceeding pursuant to
Family Ct Act article 6, to hold petitioner in violation of a
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prior custody order, and (4) from an order of said court, entered
December 21, 2012, which denied respondent's request for counsel
fees.
The parties are the divorced parents of a child (born in
2001). Pursuant to the parties' 2003 judgment of divorce, the
child's primary physical placement was to be with petitioner
(hereinafter the mother), and respondent (hereinafter the father)
was awarded parenting time with the child on alternating
weekends, in addition to other specified periods. The judgment
of divorce did not make an express award of legal custody,
directing instead that the day-to-day decisions relative to the
child would be made by the party in whose custody the child was
at that point in time – with final decision-making authority
resting with the mother. In May 2010, the parties entered into a
stipulation, which was reduced to a court order, permitting the
mother to relocate from Onondaga County to Albany County; primary
physical custody of the child – and final decision-making
authority – remained with the mother, and a detailed visitation
schedule was established for the father.
Insofar as is relevant to these appeals, the mother filed a
modification petition in August 2010 and, in January 2011, filed
a family offense petition against the father. Thereafter, in
April 2011, the father filed a modification petition and, in
October 2012, filed a violation petition contending, among other
things, that the mother was denying him telephone access to the
child and had failed to secure counseling for the child. In the
interim, beginning in November 2011 and ending in August 2012,
Family Court conducted a lengthy hearing as to the parties'
respective modification petitions and the mother's family offense
petition. Thereafter, by separate orders entered December 14,
2012, Family Court, among other things, awarded the mother sole
legal and physical custody of the child with supervised
visitation to the father, granted an order of protection in favor
of the mother based upon the father's commission of the family
offense of harassment in the second degree and, sua sponte,
dismissed the father's violation petition. Additionally, by
order entered December 21, 2012, Family Court denied the father's
request for counsel fees. These appeals by the father ensued.
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Initially, we have no quarrel with Family Court's decision
to award sole legal and physical custody of the child to the
mother. Although the mother's modification petition could have
been drafted with greater clarity, she clearly testified at the
fact-finding hearing that she was seeking sole legal and physical
custody of the child. Hence, we are satisfied that, "despite the
[arguable] absence of a petition definitively seeking sole
custody . . .[,] the [father] was clearly on notice that both
legal and residential custody were at issue" (Matter of Kowatch v
Johnson, 68 AD3d 1493, 1495 [2009], lv denied 14 NY3d 704 [2010]
[internal quotation marks and citation omitted]; accord Matter of
Mahoney v Regan, 100 AD3d 1237, 1238 [2012], lv denied 20 NY3d
859 [2013]; see Matter of Heintz v Heintz, 28 AD3d 1154, 1155
[2006]; compare Matter of Hirtz v Hirtz, 108 AD3d 712, 714-715
[2013]; Matter of Grant v Terry, 104 AD3d 854, 854 [2013]; Matter
of Revet v Revet, 90 AD3d 1175, 1176 [2011]; Matter of Joseph A.
v Jaimy B., 81 AD3d 1219, 1220 [2011]; Matter of Terry I. v
Barbara H., 69 AD3d 1146, 1149 [2010]; Matter of Adams v Bracci,
61 AD3d 1065, 1067 [2009], lv denied 12 NY3d 712 [2009]) –
particularly in view of the fact that he had filed his own
modification petition, thereby placing the issue of custody
squarely before Family Court.
Turning to the merits, "[a] parent seeking to modify an
existing custody order bears the burden of demonstrating a
sufficient change in circumstances since the entry of the prior
order to warrant modification thereof in the child's best
interests" (Matter of Bailey v Blair, 127 AD3d 1274, 1275 [2015]
[internal quotation marks, brackets and citations omitted];
accord Matter of Dornburgh v Yearry, 124 AD3d 949, 950 [2015]).
Here, there is no question that the parties' relationship has
deteriorated to the point where they no longer are able to work
together in a cooperative fashion for the sake of their child's
welfare, and the case law makes clear that discord of this
magnitude constitutes a sufficient change in circumstances to
warrant a best interests inquiry (see Matter of Paul A. v
Shaundell LL., 117 AD3d 1346, 1348 [2014], lv dismissed and
denied 24 NY3d 937 [2014]; Matter of Sonley v Sonley, 115 AD3d
1071, 1072 [2014]; Matter of Virginia C. v Donald C., 114 AD3d
1032, 1033 [2014]). In resolving that inquiry, a court must
consider a number of factors, including each "parent's past
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performance, relative fitness, ability to guide and provide for
the child['s] overall well-being, and the willingness of each
parent to foster a relationship with the other parent" (Matter of
Lawrence v Kowatch, 119 AD3d 1004, 1005 [2014] [internal
quotation marks and citations omitted]; see Matter of Bailey v
Blair, 127 AD3d at 1275-1276; Matter of Joshua UU. v Martha VV.,
118 AD3d 1051, 1052 [2014]). Upon review, "Family Court's
findings and credibility determinations are accorded great
deference and will not be disturbed unless they lack a sound and
substantial basis in the record" (Matter of Gilbert v Gilbert,
128 AD3d 1286, 1287 [2015] [internal quotation marks and
citations omitted]; see Matter of Bailey v Blair, 127 AD3d at
1276).
Here, Family Court authored a well-reasoned decision
wherein it set forth – in substantial detail – the father's
documented efforts to, among other things, denigrate the mother
and undermine her role in the child's life, as well as the
father's consistent inability to place his child's needs ahead of
his own. Without belaboring the point, suffice it to say that
the record contains ample support for Family Court's findings in
this regard, including the report authored by and testimony
adduced from Elizabeth Schockmel, the clinical and forensic
psychologist who examined the parties and the child. In her
written evaluation, Schockmel noted that, during the course of
her interviews with the father, he consistently displayed a "tone
of superiority" and devoted significant time to "belittling and
devaluing" the mother. Schockmel offered similar testimony at
trial, stating that the father expressed the belief that he was
the only parent that the child needed and was "exceedingly
focused on convincing [the child] that his life with his mother
was not good, that his life in Albany [County] was not good, and
that for him to be a happy and healthy little boy[,] he needed to
be back in [Onondaga County] with [his father]."
As for the parties' respective parenting abilities and
priorities, Schockmel opined that the mother's primary focus was
to achieve some level of "peace and harmony" in the child's life
and that she possessed a "genuine[] desire[] for the stress and
conflict in [the child's] life to decrease." Schockmel further
testified that, despite all that had transpired, the mother
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recognized the importance of the father's presence in the child's
life and "still [was willing to] work to have [the child] . . .
have regular time with his father." The father, on the other
hand, was, in Schockmel's view, far more concerned with having
control over the child than he was in reaching a resolution that
would be in the child's best interests – a conclusion borne out
by the father's statement that he "would have nothing to do with
[the child]" if the child was allowed to remain in Albany County
in the custody of the mother. As for the father's ability to
foster a meaningful relationship between the child and his
mother, Schockmel recounted the father's stated desire to pay
someone $10,000 to marry the mother – together with an additional
$5,000 per year for each year that such marriage continued – as
"it would be worth it to have [the mother] out of his hair" and,
presumably, out of the child's life.
In addition to the foregoing, the mother testified at
length regarding, among other things, the father's willingness to
share information and details regarding the parties' custody
litigation with the child, his repeated and unfounded reports to
local law enforcement officials and child protective services
relative to the child's well-being and his attempts to undermine
her efforts to obtain mental health counseling for the child –
actions that, the record reflects, impacted the child's academic
performance and clearly were inconsistent with his overall best
interests. Family Court found the mother's testimony to be
entirely credible – a determination that we see no reason to
disturb – and, based upon our review of the record as a whole, we
find that Family Court's decision to award sole legal and
physical custody of the child to the mother is supported by a
sound and substantial basis in the record. We reach a similar
conclusion with regard to Family Court's decision to impose
supervised visitation for the father. Again, without reiterating
the extensive testimony offered as to the father's controlling
demeanor, limited discretion, demonstrated lapses in parental
judgment and apparent unwillingness and/or inability "to
discharge his . . . parental responsibility properly" (Matter of
Raychelle J. v Kendell K., 121 AD3d 1206, 1208 [2014] [internal
quotation marks and citations omitted]), we are satisfied that
Family Court appropriately determined that supervised visitation
was in the child's best interests.
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The remaining arguments raised by the father do not warrant
extended discussion. Although the underlying order of protection
expired by its own terms in December 2014, this aspect of the
father's appeal is not moot for two reasons: first, despite the
expiration of the order of protection, the finding that the
father committed a family offense has "enduring consequences"
(Matter of Sasha R. v Alberto A., 127 AD3d 567, 567 [2015];
accord Matter of Ramona A.A. v Juan M.N., 126 AD3d 611, 611
[2015]); additionally, the father also separately appealed from
the order finding that he had committed a family offense.
Turning to the merits, and insofar as is relevant here,
"[a] person is guilty of harassment in the second degree when,
with intent to harass, annoy or alarm another person . . . [h]e
or she strikes, shoves, kicks or otherwise subjects such other
person to physical contact, or attempts or threatens to do the
same" (Penal Law § 240.26 [1] [emphasis added]; accord Matter of
Christina KK. v Kathleen LL., 119 AD3d 1000, 1002 [2014]). "The
requisite intent may be inferred from the surrounding
circumstances" (Matter of Shana SS. v Jeremy TT., 111 AD3d 1090,
1091 [2013], lv denied 22 NY3d 862 [2014] [citations omitted]),
and whether a family offense has been established by "a fair
preponderance of the evidence" (Family Ct Act § 832) presents a
factual issue for Family Court's resolution (see Matter of
Christina KK. v Kathleen LL., 119 AD3d at 1001). Here, the
mother testified that, in January 2011, the father telephoned her
and, during the course of the ensuing conversation, stated, "I
will hunt you down and take care of you, you bitch, you'll be
sorry." Contrary to the father's assertion, physical proximity
to the victim is not an element of the underlying offense, and
this single incident is sufficient to support Family Court's
finding that the father committed the family offense of
harassment in the second degree (see Matter of Salazar v
Melendez, 97 AD3d 754, 755 [2012], lv denied 20 NY3d 852 [2012]).
As for the dismissal of the father's violation petition,
even assuming that Family Court erred in dismissing the petition
– in part – upon res judicata grounds, we nonetheless are
persuaded that such petition was properly dismissed. Finally,
upon due consideration of all of the attendant circumstances, we
do not find that Family Court abused its discretion in denying
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the father's request for counsel fees. The father's remaining
contentions, to the extent not specifically addressed, have been
examined and found to be lacking in merit.
Garry, J.P., Rose and Lynch, JJ., concur.
ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court