Opinion
987 CAF 18–01012
11-08-2019
In the Matter of Desirae C. HEINSLER, Petitioner–Appellant, v. Rosemarie SERO, Respondent–Respondent. (Appeal No. 1.)
DAVID J. PAJAK, ALDEN, FOR PETITIONER–APPELLANT. JACQUELINE M. GRASSO, BATAVIA, ATTORNEY FOR THE CHILDREN.
DAVID J. PAJAK, ALDEN, FOR PETITIONER–APPELLANT.
JACQUELINE M. GRASSO, BATAVIA, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Genesee County, for further proceedings in accordance with the following memorandum: In these consolidated appeals, petitioner mother appeals from two orders that dismissed her petitions seeking to modify a prior stipulated order granting respondent great aunt custody of the mother's three children. Inasmuch as there has been a prior judicial determination of extraordinary circumstances supporting the award of custody to respondent, "the appropriate standard in addressing the possible modification of the prior order is whether there has been a change of circumstances" warranting an inquiry whether modification of custody or visitation is in the best interests of the children ( Matter of Guinta v. Doxtator, 20 A.D.3d 47, 51, 794 N.Y.S.2d 516 [4th Dept. 2005] ). We agree with the mother that Family Court erred in granting respondent's motion to dismiss the petitions at the close of the mother's case on the ground that the mother failed to establish a sufficient change in circumstances since entry of the stipulated order (see Matter of McClinton v. Kirkman, 132 A.D.3d 1245, 1245–1246, 18 N.Y.S.3d 485 [4th Dept. 2015] ; cf. Matter of Mathewson v. Sessler, 94 A.D.3d 1487, 1489, 943 N.Y.S.2d 326 [4th Dept. 2012], lv denied 19 N.Y.3d 815, 2012 WL 5258829 [2012] ; see also Matter of Amy L.M. v. Kevin M.M., 31 A.D.3d 1224, 1225, 817 N.Y.S.2d 850 [4th Dept. 2006] ). At the time the prior order of custody and visitation was entered, the mother did not have a vehicle or employment, and she lived with a man who was prohibited by court order from having any contact with the subject children. The mother established that, at the time of the hearing, she owned a car, worked full-time, and no longer lived with or had a relationship with the aforementioned man. Indeed, in its oral decision dismissing the petitions, the court noted that the mother had "improved" herself and that it was "impressed" with her progress. Based on the foregoing, we conclude that the mother "met [her] burden of demonstrating a sufficient change in circumstances to require consideration of the welfare of the child[en]" ( McClinton, 132 A.D.3d at 1246, 18 N.Y.S.3d 485 [internal quotation marks omitted] ).
Where the record is sufficient to make our own best interests determination, this Court "will do so in ‘the interests of judicial economy and the well-being of the child[ren]’ " ( Matter of Cole v. Nofri, 107 A.D.3d 1510, 1512, 967 N.Y.S.2d 552 [4th Dept. 2013], appeal dismissed 22 N.Y.3d 1083, 981 N.Y.S.2d 666, 4 N.E.3d 967 [2014] ). Here, however, the court dismissed the petitions before respondent testified or offered any evidence and, thus, we do not have "an adequate record upon which to make our own determination in the interest of judicial economy" ( McClinton, 132 A.D.3d at 1246, 18 N.Y.S.3d 485 ; cf. Matter of Maher v. Maher, 1 A.D.3d 987, 988, 767 N.Y.S.2d 179 [4th Dept. 2003] ; see generally Matter of Austin v. Austin, 254 A.D.2d 703, 703–704, 678 N.Y.S.2d 230 [4th Dept. 1998] ). We therefore reverse the orders, reinstate the petitions and remit the matters to Family Court for a new hearing to determine whether the modifications sought by the mother in her petitions are in the children's best interests.
Based on our determination, we do not address the mother's remaining contention regarding custody and visitation.
The mother further contends that she established that respondent had violated the prior order of custody and visitation. That contention is " ‘beyond our review’ " inasmuch as the mother did not appeal from the order dismissing the violation petitions ( Matter of Carroll v. Chugg, 141 A.D.3d 1106, 1106, 34 N.Y.S.3d 848 [4th Dept. 2016] ). In any event, the mother stipulated to the order dismissing those petitions, and it is well settled that "no appeal lies from an order entered upon the parties' consent" ( Matter of Fox v. Coleman, 93 A.D.3d 1187, 1187, 939 N.Y.S.2d 786 [4th Dept. 2012] ; see Matter of Adney v. Morton, 68 A.D.3d 1742, 1742, 890 N.Y.S.2d 864 [4th Dept. 2009] ).