Opinion
378 CAF 18–00103
06-14-2019
In the Matter of James C. CHROMCZAK, Petitioner-Appellant, v. Angelia L. SALEK, Respondent-Respondent. (Appeal No. 1.)
TRACY L. PUGLIESE, CLINTON, FOR PETITIONER–APPELLANT. PETER J. DIGIORGIO, JR., UTICA, ATTORNEY FOR THE CHILD.
TRACY L. PUGLIESE, CLINTON, FOR PETITIONER–APPELLANT.
PETER J. DIGIORGIO, JR., UTICA, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER 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, petitioner-respondent father appeals in appeal No. 1 from an order that dismissed his violation petition against respondent-petitioner mother alleging that he was denied visitation with the subject child under an existing custody and visitation order (existing order). In appeal No. 2, the father appeals from an order that dismissed his petition seeking to modify the existing order by granting him custody of the subject child. In appeal No. 3, the father appeals from an order that granted the mother's petition for modification of the existing order by, inter alia, prohibiting the father's live-in girlfriend from having any contact with the child. We affirm in each appeal.
The father contends in each appeal that reversal is warranted because Family Court was biased against him. The father did not preserve that contention for our review, however, because "he failed to make a motion asking the court to recuse itself" ( Matter of Shonyo v. Shonyo, 151 A.D.3d 1595, 1596, 56 N.Y.S.3d 390 [4th Dept. 2017], lv denied 30 N.Y.3d 901, 2017 WL 4543499 [2017] ; see Matter of Mattice v. Palmisano, 159 A.D.3d 1407, 1409, 72 N.Y.S.3d 681 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2921144 [2018] ). In any event, we conclude that the father's contention lacks merit inasmuch as "[t]he record does not establish that the court was biased or prejudiced against [him]" ( Mattice, 159 A.D.3d at 1409, 70 N.Y.S.3d 153 [internal quotation marks omitted] ).
With respect to the order in appeal No. 1, the father raises no issues in his brief other than the court's alleged bias, and we therefore deem any such issues abandoned (see Matter of Jones v. Jamieson, 162 A.D.3d 1720, 1721, 80 N.Y.S.3d 773 [4th Dept. 2018] ; Matter of Williams v. Epps, 101 A.D.3d 1695, 1696, 956 N.Y.S.2d 773 [4th Dept. 2012] ; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
As a preliminary matter with respect to appeal Nos. 2 and 3, we note that the father failed to include the existing order in the record on appeal. " ‘While omission from the record on appeal of the order sought to be modified ordinarily would result in dismissal of the appeal[s] ..., there is no dispute’ concerning the custody [and visitation] provisions contained in that order," and we may therefore reach the merits of the issues raised on these appeals ( Matter of Gilman v. Gilman, 128 A.D.3d 1387, 1387, 7 N.Y.S.3d 792 [4th Dept. 2015] ; see Matter of Carey v. Windover, 85 A.D.3d 1574, 1574, 925 N.Y.S.2d 360 [4th Dept. 2011], lv. denied 17 N.Y.3d 710, , 2011 WL 4357160 [2011] ).
Addressing the father's contentions with respect to the order in appeal No. 3, we conclude that the mother met her burden of establishing a change in circumstances sufficient to warrant an inquiry into whether a modification of the custody and visitation arrangement is in the best interests of the child (see Matter of Greene v. Kranock, 160 A.D.3d 1476, 1476, 74 N.Y.S.3d 826 [4th Dept. 2018] ). Although the court did not make an express finding of a change in circumstances, "we have the authority to ‘review the record to ascertain whether the requisite change in circumstances existed’ " ( Matter of Allen v. Boswell, 149 A.D.3d 1528, 1528, 53 N.Y.S.3d 432 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653468 [2017] ). Here, the admissible evidence adduced at the fact-finding hearing, as well as the child's statements at the Lincoln hearing, established the requisite change in circumstances inasmuch as the father and the girlfriend exposed the child to inappropriate behavior, fighting, and verbal altercations in the father's household (see Matter of Holleran v. Faucett, 143 A.D.3d 1205, 1206–1207, 40 N.Y.S.3d 253 [3d Dept. 2016] ; Matter of Fountain v. Fountain, 130 A.D.3d 1107, 1108, 12 N.Y.S.3d 641 [3d Dept. 2015] ), and the girlfriend, who had a history of substance abuse, admitted to a caseworker a few weeks before the filing of the mother's modification petition that she had again been using drugs (see Matter of Creek v. Dietz, 132 A.D.3d 1283, 1284, 16 N.Y.S.3d 888 [4th Dept. 2015], lv denied 26 N.Y.3d 914, 2015 WL 9144626 [2015] ).
The father further contends that the court erred in determining that it is in the child's best interests to prohibit the girlfriend from having contact with the child. We reject that contention. "Family Court is ‘afforded wide discretion in crafting an appropriate visitation schedule’ ... and ‘has the power to impose restrictions on [a] child[ ]'s interactions with third parties during visitation if it is in the child[ ]'s best interests to do so’ " ( Matter of David J. v. Leeann K., 140 A.D.3d 1209, 1212, 32 N.Y.S.3d 686 [3d Dept. 2016] ; see Matter of Lynn X. v. Donald X., 162 A.D.3d 1276, 1278, 79 N.Y.S.3d 328 [3d Dept. 2018] ). Here, in addition to the conduct between the father and the girlfriend to which the child was exposed in the father's household and the girlfriend's drug use, the record also establishes that the girlfriend had a history of neglect and restricted visitation with respect to her own daughter, and the court properly determined that allowing the girlfriend to have contact with the child created an unnecessary risk to the child's health and well-being (see Lynn X., 162 A.D.3d at 1278, 79 N.Y.S.3d 328 ). We thus conclude that "[the court's] determination that it [is] in the child's best interests to have no contact with the girlfriend ha[s] a sound and substantial basis in the record" ( id. ; see David J., 140 A.D.3d at 1212, 32 N.Y.S.3d 686 ).
We also reject the father's contention that the court granted relief that was not requested by the mother. Here, the parties and the court expressed an understanding that the subject of the mother's modification petition was whether the girlfriend would be prohibited from having contact with the child, and the evidence presented at the fact-finding hearing was directed to that subject (see Matter of Heintz v. Heintz, 28 A.D.3d 1154, 1155, 813 N.Y.S.2d 591 [4th Dept. 2006] ). Thus, the record establishes that the father was "adequately apprised prior to the hearing that [the girlfriend's contact with the child] was at issue, and ... had a sufficient opportunity to present any testimony and evidence relevant to th[at] issue" ( id. ; see Matter of Heasley v. Morse, 144 A.D.3d 1405, 1406 n 1, 42 N.Y.S.3d 377 [3d Dept. 2016] ; cf. Matter of Majuk v. Carbone, 129 A.D.3d 1485, 1485–1486, 12 N.Y.S.3d 410 [4th Dept. 2015] ).
Finally, contrary to the father's contention in appeal No. 2, we conclude that the court properly dismissed his modification petition, which he filed partway through the fact-finding hearing, without conducting an additional hearing (cf. S.L. v. J.R., 27 N.Y.3d 558, 563–564, 36 N.Y.S.3d 411, 56 N.E.3d 193 [2016] ; see generally Navarrete v. Navarrete, 126 A.D.3d 801, 802, 5 N.Y.S.3d 295 [2d Dept. 2015] ). The court "clearly articulate[d] which factors were ... material to its determination, and the evidence supporting its decision" ( S.L., 27 N.Y.3d at 564, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; cf. Matter of King v. King, 145 A.D.3d 1613, 1614, 43 N.Y.S.3d 822 [4th Dept. 2016] ), and the evidence upon which the court relied, which included the testimony at the fact-finding hearing and the child's statements at the Lincoln hearing, established that granting the father custody would not be in the child's best interests (see generally Navarrete, 126 A.D.3d at 802, 5 N.Y.S.3d 295 ).