Opinion
2014-06-13
In the Matter of Crystal ABBOTT, Petitioner–Appellant–Respondent, v. David MERRITT, Respondent–Respondent–Appellant.
Lesley C. Germanow, Fulton, for Petitioner–Appellant–Respondent. Linda M. Campbell, Syracuse, for Respondent–Respondent–Appellant.
Lesley C. Germanow, Fulton, for Petitioner–Appellant–Respondent. Linda M. Campbell, Syracuse, for Respondent–Respondent–Appellant.
A.J. Bosman, Attorney for the Children, Rome.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
In October 2011, petitioner mother and respondent father agreed to a stipulated order that, inter alia, gave them joint legal custody of their children, with the father having primary physical custody and the mother having liberal visitation. At the time, the father lived in North Carolina and the mother was in the process of relocating to North Carolina. The mother, however, returned to New York in December and filed a petition seeking to enforce the stipulated order in January 2012. The mother thereafter filed a petition seeking to modify the stipulated order by requesting that Family Court grant her primary physical custody of the children. After a hearing, the court granted the father sole legal and primary physical custody of the children and granted the mother liberal visitation. The mother appeals and the father cross-appeals.
We reject the father's threshold procedural contention on his cross appeal that the stipulated order vested jurisdiction in the North Carolina courts. The stipulated order merely allowed either party to petition a North Carolina court to modify visitation; it did not require a party to do so. In any event, “parties cannot, by agreement, confer jurisdiction on either state” ( DeJac v. DeJac, 17 A.D.3d 1066, 1068, 794 N.Y.S.2d 208;see Arnold v. Harari, 4 A.D.3d 644, 646, 772 N.Y.S.2d 727). We reject the father's further contention on his cross appeal that the court erred in denying his motion to stay the mother's enforcement petition and to transfer the proceeding to North Carolina on the ground that New York was an inconvenient forum. The record supports the court's determination that the factors set forth in Domestic Relations Law § 76–f (2) favored New York retaining jurisdiction. In particular, the record establishes that the children have not resided in North Carolina for very long; the father has more financial resources than the mother to enable him to travel to New York for court proceedings; and the New York courts have had prior involvement with the parties ( see Matter of Mercado v. Frye, 104 A.D.3d 1340, 1341, 961 N.Y.S.2d 717,lv. denied21 N.Y.3d 859, 2013 WL 3198162;Matter of Sutton v. Sutton, 74 A.D.3d 1838, 1839–1840, 902 N.Y.S.2d 746). While the father asserted that much of the evidence needed at the hearing would come from North Carolina, we note that the court allowed the father to present the testimony of several witnesses via telephone ( see Mercado, 104 A.D.3d at 1341, 961 N.Y.S.2d 717;DeJac, 17 A.D.3d at 1067–1068, 794 N.Y.S.2d 208). We also reject the father's contention on his cross appeal that the final ordering paragraph of the court's order must be stricken. In that paragraph, the court stated that it would “maintain exclusive, continuing jurisdiction over th[e] matter,” but it was “pursuant to Domestic Relations Law § 76–a.” The court's reference to section 76–a indicates that the court would not continue to exercise jurisdiction over the matter if it becomes inappropriate to do so. We reject the father's final contention on his cross appeal that the visitation schedule grants excessive visitation to the mother ( cf. Cesario v. Cesario, 168 A.D.2d 911, 911, 565 N.Y.S.2d 653). Indeed, we note that the visitation schedule ordered by the court was in large part proposed by the father during his testimony.
Contrary to the mother's contention on her appeal, we conclude that the court's custody determination has a sound and substantial basis in the record ( see Mercado, 104 A.D.3d at 1341–1342, 961 N.Y.S.2d 717). The record establishes the requisite change in circumstances inasmuch as the mother has moved back to New York, thus rendering the visitation schedule set forth in the stipulated order impractical ( see Matter of Rohan AA. v. Lonna CC., 109 A.D.3d 1051, 1053, 973 N.Y.S.2d 367). In addition, the record further establishes that the parties are unable to communicate or make joint decisions ( see Matter of Murphy v. Wells, 103 A.D.3d 1092, 1093, 958 N.Y.S.2d 560,lv. denied21 N.Y.3d 854, 2013 WL 1831640;Matter of Anthony MM. v. Jacquelyn NN., 91 A.D.3d 1036, 1037, 937 N.Y.S.2d 360). Contrary to the mother's further contention on her appeal, the court did not err in awarding the father sole legal custody despite the absence of a petition seekingthat relief. “[T]he issue of an award of custody to any party was properly before the court [because, i]n a child custody proceeding, a court has the authority to enter orders for custody ... as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child” (Matter of Hall v. Porter, 52 A.D.3d 1289, 1289, 859 N.Y.S.2d 786 [internal quotation marks omitted] ).
The mother's contention on her appeal that the stipulated order should have been vacated on the ground of fraud is not preserved for our review because she did not move to vacate the stipulated order ( see generally Matter of York v. Zullich, 89 A.D.3d 1447, 1448, 932 N.Y.S.2d 637;cf. Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1418, 770 N.Y.S.2d 248). The mother further contends that the court erred in finding that her enforcement petition was moot and that the father should be held in contempt for failing to comply with the stipulated order. We note, however, that the mother never filed a violation petition or requested that the father be held in contempt. Inasmuch as the court modified the stipulated order, we conclude that it properly held that the mother's petition seeking to enforce that order was moot. The mother failed to object to the court taking telephonic testimony of witnesses and therefore failed to preserve for our review her contention with respect to that telephonic testimony ( see generally York, 89 A.D.3d at 1448, 932 N.Y.S.2d 637). In any event, that contention is without merit ( seeDomestic Relations Law § 75–j [2]; Matter of Kelly v. Krupa, 63 A.D.3d 1395, 1396, 881 N.Y.S.2d 531). Finally, the mother's challenge to one of the court's temporary orders of visitation was rendered moot by the final order of custody and visitation ( see Matter of Ramirez v. Velez, 78 A.D.3d 1062, 1062–1063, 911 N.Y.S.2d 466;Posporelis v. Posporelis, 41 A.D.3d 986, 988, 838 N.Y.S.2d 681;Moody v. Sorokina, 40 A.D.3d 14, 19, 830 N.Y.S.2d 399,appeal dismissed8 N.Y.3d 978, 836 N.Y.S.2d 547, 868 N.E.2d 231,reconsideration denied9 N.Y.3d 887, 842 N.Y.S.2d 766, 874 N.E.2d 730).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.