Opinion
522 CAF 19-02339
07-16-2021
In the Matter of Tory Anne BAKER, Petitioner-Appellant, v. Shaun William MACKEY, Respondent-Respondent. In the Matter of Shaun William Mackey, Petitioner-Respondent, v. Tory Anne Baker, Respondent-Appellant.
JOHN J. RASPANTE, UTICA, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT. STEPHANIE N. DAVIS, OSWEGO, ATTORNEY FOR THE CHILD.
JOHN J. RASPANTE, UTICA, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.
STEPHANIE N. DAVIS, OSWEGO, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Family Court Act article 6, petitioner-respondent mother filed separate petitions alleging a violation of a prior order of custody and visitation and seeking modification of that order by awarding her primary residential custody of the parties’ child. Respondent-petitioner father filed separate petitions alleging a violation of the prior order and seeking modification of that order by, among other things, awarding him sole legal custody. The mother appeals from an order that, inter alia, granted the father's violation petition and his modification petition insofar as it sought sole legal custody and that dismissed the mother's petitions. We affirm.
Initially, we note that the mother is not aggrieved by that part of the order in which Family Court concluded that she established a change in circumstances sufficient to warrant an examination of the best interests of the child, and thus her contentions with respect thereto are not properly before us (see Matter of Menard v. Roberts , 194 A.D.3d 1427, 1428, 143 N.Y.S.3d 653 [4th Dept. 2021] ; see generally CPLR 5511 ; Parochial Bus Sys. v. Board of Educ. of City of N.Y. , 60 N.Y.2d 539, 544-545, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ).
We reject the mother's further contention that the court erred in granting the father's modification petition insofar as it sought sole legal custody of the child and in dismissing her modification petition. It is well settled that "a court's determination regarding custody ... issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight" ( Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] [internal quotation marks omitted]), and such a determination " ‘will not be disturbed [where, as here,] it is supported by a sound and substantial basis in the record’ " ( Matter of Ladd v. Krupp , 136 A.D.3d 1391, 1393, 24 N.Y.S.3d 834 [4th Dept. 2016] ; see Williams v. Williams , 100 A.D.3d 1347, 1348, 953 N.Y.S.2d 421 [4th Dept. 2012] ).
Finally, we reject the mother's contention that the court erred in dismissing her violation petition. To the contrary, we conclude that "the court properly determined that [the mother] failed to establish by clear and convincing evidence that the [father] willfully violated the terms of the custody order with respect to ... visitation" ( Matter of Unczur v. Welch , 159 A.D.3d 1405, 1405, 72 N.Y.S.3d 680 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2924938 [2018] ; see Matter of Santoro v. Guggi , 191 A.D.3d 1249, 1251, 139 N.Y.S.3d 738 [4th Dept. 2021], lv denied 37 N.Y.3d 902, 2021 WL 2153261 [2021] ; cf. Matter of Moreno v. Elliott , 155 A.D.3d 1561, 1562, 63 N.Y.S.3d 778 [4th Dept. 2017], lv dismissed in part and denied in part 30 N.Y.3d 1098, 70 N.Y.S.3d 172, 93 N.E.3d 897 [2018] ).