Opinion
2012-12-28
In the Matter of Deborah A. AVOLA, Petitioner–Appellant, v. Christopher W. HORNING, Respondent–Respondent. Mai Lutterus Liinve, Attorney for the Child, Appellant.
Proven and Quencer, Watertown (Lisa A. Proven of Counsel), for Petitioner–Appellant. Mai Lutterus Liinve, Attorney for the Child, Watertown, Appellant Pro Se.
Proven and Quencer, Watertown (Lisa A. Proven of Counsel), for Petitioner–Appellant.Mai Lutterus Liinve, Attorney for the Child, Watertown, Appellant Pro Se.
Ruthanne G. Sanchez, Watertown, for Respondent–Respondent.
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Petitioner mother and the Attorney for the Child appeal from an order that dismissed the mother's petition seeking to modify the prior joint custody order entered upon the parties' stipulation by awarding her sole custody of the parties' child. We affirm. “[T]here is a sound and substantial basis in the record for Family Court's determination that the mother failed to make the requisite evidentiary showing of a change in circumstances to warrant an inquiry into whether the best interests of the subject child would be served by modifying the existing custody arrangement” ( Matter of Wawrzynski v. Goodman, 100 A.D.3d 1559, 1559, 953 N.Y.S.2d 921;see generally Matter of Yaddow v. Bianco, 67 A.D.3d 1430, 1431, 888 N.Y.S.2d 700;Matter of Chrysler v. Fabian, 66 A.D.3d 1446, 1447, 885 N.Y.S.2d 861,lv. denied13 N.Y.3d 715, 2010 WL 92454). Contrary to the mother's contention, the parties' communication problems did not constitute a change in circumstances. Although the record reflects that the parties experience some difficulty in communicating with each other, there does not appear to have been a change in the parties' communication issues since the prior custody order was entered ( see Matter of Chant v. Filippelli, 277 A.D.2d 741, 742, 716 N.Y.S.2d 158). Moreover, the record reflects that the parties' communication issues have not meaningfully interfered with the child's emotional and intellectual development, health, or success in school ( see Marcantonio v. Marcantonio, 307 A.D.2d 740, 741, 761 N.Y.S.2d 420). Contrary to the mother's further contention, the father's alleged failure to spend time with the child when the child was in his physical custody also did not establish the requisite change in circumstances ( see generally Matter of Kerwin v. Kerwin, 39 A.D.3d 950, 951, 833 N.Y.S.2d 694).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.