Opinion
374 CAF 17–00678
04-27-2018
In the Matter of Cleavon CLARK, III, Petitioner–Respondent, v. Monica D. KITTLES, Respondent–Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT–APPELLANT. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR PETITIONER–RESPONDENT. MAROUN G. AJAKA, ROCHESTER, ATTORNEY FOR THE CHILD.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT–APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR PETITIONER–RESPONDENT.
MAROUN G. AJAKA, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: In this custody proceeding pursuant to Family Court Act article 6, respondent mother appeals from a "superseding custody order" that modified a prior order of joint custody by, inter alia, awarding petitioner father sole custody and primary physical residence of the parties' son, and reducing the mother's parenting time with the child to six hours per week. As an initial matter, we reject the mother's contention that Family Court erred in refusing to consider her motion to dismiss the father's modification petition. Although the court "has discretion to overlook late or defective service of a motion where the nonmoving party is not prejudiced" ( Matter of Noble v. Paris, 143 A.D.3d 1288, 1288, 38 N.Y.S.3d 503 [4th Dept. 2016], lv denied 29 N.Y.3d 904, 2017 WL 1224173, 2017 WL 1224179 [2017] [internal quotation marks omitted] ), the court is not required to do so (see generally Kolnacki v. State of New York, 8 N.Y.3d 277, 279, 832 N.Y.S.2d 481, 864 N.E.2d 611 [2007], rearg. denied 8 N.Y.3d 994, 838 N.Y.S.2d 835, 870 N.E.2d 153 [2007] ; Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1681, 12 N.Y.S.3d 684 [4th Dept. 2015] ). Where, as here, the mother had several months within which to make a proper motion on notice but failed to do so (see § 165[a]; CPLR 2214 ), we conclude that the court did not abuse its discretion in refusing to entertain the oral motion of the mother's attorney immediately prior to the commencement of the trial.
We reject the mother's further contention that the father failed to meet his initial burden of establishing a change in circumstances. Specifically, the father established the mother's unwillingness to communicate with the father and the paternal grandmother concerning the child, as well as the mother's virtual absence from the child's life for almost five months. In our view, those facts constitute "a sufficient change in circumstances to warrant an inquiry into the best interests of the child[ ]" ( Matter of DeJesus v. Gonzalez, 136 A.D.3d 1358, 1359, 24 N.Y.S.3d 825 [4th Dept. 2016], lv denied 27 N.Y.3d 906, 2016 WL 3084688 [2016] ; see Matter of Emmanuel SS. v. Thera SS., 152 A.D.3d 900, 901, 58 N.Y.S.3d 725 [3d Dept. 2017], lv denied 30 N.Y.3d 905, 2017 WL 5492775 [2017] ).
Contrary to the mother's contention that the court erred in awarding sole custody of the child to the father, we conclude that the court's determination is based on a "careful weighing of [the] appropriate factors ... and ... has a sound and substantial basis in the record" ( Matter of McLeod v. McLeod, 59 A.D.3d 1011, 1011, 872 N.Y.S.2d 313 [4th Dept. 2009] ), and we therefore see no reason to disturb it (see Matter of Joyce S. v. Robert W.S., 142 A.D.3d 1343, 1344, 38 N.Y.S.3d 300 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1730862 [2017] ).
Finally, we have examined the remaining contention of the mother and the Attorney for the Child, and we conclude that it does not require modification of the order.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.