Opinion
1136 CAF 20-00880
02-05-2021
In the Matter of Lacey Jo FERGUSON, Petitioner-Respondent, v. Nicholas Joseph LECLAIR and Emily Rose Whipple, Respondents-Appellants. (Appeal No. 1.)
NICHOLAS JOSEPH LECLAIR, RESPONDENT-APPELLANT PRO SE. EMILY ROSE WHIPPLE, RESPONDENT-APPELLANT PRO SE. ROSE T. PLACE, GLENS FALLS, ATTORNEY FOR THE CHILDREN.
NICHOLAS JOSEPH LECLAIR, RESPONDENT-APPELLANT PRO SE.
EMILY ROSE WHIPPLE, RESPONDENT-APPELLANT PRO SE.
ROSE T. PLACE, GLENS FALLS, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal insofar as taken by respondent Emily Rose Whipple is unanimously dismissed and the order is affirmed without costs.
Memorandum: In appeal No. 1, respondent father and respondent mother appeal from an order that, among other things, found them in contempt of court for violating a prior order of custody and visitation that, inter alia, awarded petitioner grandmother visitation with the subject children. In appeal No. 2, the father and the mother appeal from an order that, inter alia, dismissed the father's petition to modify the prior order by terminating the grandmother's visitation with the children. Because the mother did not appear at the hearing, she was in default and therefore the appeals to the extent that they are taken by her must be dismissed (see Matter of Whelan v. Baron , 165 A.D.3d 1524, 1524, 85 N.Y.S.3d 627 [3d Dept. 2018] ; Matter of Roache v. Hughes-Roache , 153 A.D.3d 1653, 1653, 61 N.Y.S.3d 411 [4th Dept. 2017] ). Relatedly, we reject the father's contention in both appeals that Family Court abused its discretion by precluding the mother from testifying by telephone. Remote testimony is specifically authorized only in certain Family Court proceedings (see e.g. Family Ct Act §§ 433 [c] ; 531-a), and the proceedings here are not among them. Although a court has the inherent authority to grant permission to testify remotely (see People v. Wrotten , 14 N.Y.3d 33, 36, 896 N.Y.S.2d 711, 923 N.E.2d 1099 [2009], cert denied 560 U.S. 959, 130 S.Ct. 2520, 177 L.Ed.2d 316 [2010] ; see also Judiciary Law § 2-b [3] ), here, the court did not abuse its discretion in refusing such permission inasmuch as no excuse was offered for the mother's absence (see Matter of Ian G. [Simon G.] , 180 A.D.3d 474, 475, 119 N.Y.S.3d 95 [1st Dept. 2020], lv denied 35 N.Y.3d 910, 911, 2020 WL 5047570 [2020] ) and the court specifically noted that it would be difficult to assess her credibility if she testified in that manner (see Matter of Neamiah Harry-Ray M. [Donna Marie M.] , 127 A.D.3d 409, 410, 4 N.Y.S.3d 502 [1st Dept. 2015] ).
Contrary to the father's further contention in appeal No. 1, the grandmother established by clear and convincing evidence that " ‘a lawful court order clearly expressing an unequivocal mandate was in effect, that [the father] ... had actual knowledge of its terms, and that the violation ... defeated, impaired, impeded, or prejudiced the rights of [the grandmother]’ " ( Matter of Howell v. Lovell , 103 A.D.3d 1229, 1230, 960 N.Y.S.2d 278 [4th Dept. 2013] ; see Matter of Beesmer v. Amato , 162 A.D.3d 1260, 1261-1262, 79 N.Y.S.3d 334 [3d Dept. 2018] ). Indeed, the father's testimony alone established that he repeatedly withheld visitation from the grandmother without good cause. In light of that evidence, we reject the father's challenge in appeal No. 1 to the severity of his sentence (see Matter of Rodriguez v. Delacruz-Swan , 100 A.D.3d 1286, 1288, 954 N.Y.S.2d 692 [3d Dept. 2012] ). We have reviewed the father's remaining contentions in each appeal and conclude that they do not require reversal or modification of either order.