Opinion
779 CA 19-02256
10-02-2020
Andrea L. HENDERSHOT, Plaintiff-Respondent, v. Paul S. HENDERSHOT, Defendant-Appellant.
MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-APPELLANT. ANDREA L. HENDERSHOT, PLAINTIFF-RESPONDENT PRO SE. SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILDREN.
MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-APPELLANT.
ANDREA L. HENDERSHOT, PLAINTIFF-RESPONDENT PRO SE.
SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this post-judgment proceeding, defendant father appeals, as limited by his brief, from an order to the extent that it granted that part of the motion of plaintiff mother seeking to increase her visitation with the subject children. We agree with the father that the mother, as the party seeking to modify the visitation provisions of the judgment of divorce, was required to "demonstrat[e] a sufficient change in circumstances since the time of the [judgment] to warrant an inquiry into the best interests of the children" (Matter of William F.G. v. Lisa M.B. , 169 A.D.3d 1428, 1429, 92 N.Y.S.3d 805 [4th Dept. 2019] ; see Matter of Chromczak v. Salek , 173 A.D.3d 1750, 1751, 105 N.Y.S.3d 629 [4th Dept. 2019] ; Matter of Smith-Gilsey v. Grisanti , 111 A.D.3d 1424, 1424, 974 N.Y.S.2d 870 [4th Dept. 2013] ). We reject the father's further contention that the mother failed to meet that burden.
Initially, we conclude that where, as here, "[Supreme] Court failed to make an express finding that there was 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] ; see Matter of Grabowski v. Smith , 182 A.D.3d 1002, 1003, 123 N.Y.S.3d 313 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047587 [2020] ).
Here, the record establishes that the father was living entirely in Canandaigua when the judgment of divorce was issued, and the judgment granted him significant time with the children during the week. The mother established, however, that the father then began attending college in Ithaca and living there during the week, and the children were being cared for entirely by the paternal grandmother during the times the father was out of town. In addition, the mother moved back to Canandaigua from Albany at approximately the time that the judgment was issued. Thus, "the combined effect of the parties' ‘relocation[s] was a change of circumstances warranting a reexamination of the existing custody [and visitation] arrangement’ " ( Shaw v. Shaw , 155 A.D.3d 1673, 1674, 64 N.Y.S.3d 828 [4th Dept. 2017] ; see Matter of Dench–Layton v. Dench–Layton , 123 A.D.3d 1350, 1351, 998 N.Y.S.2d 538 [3d Dept. 2014] ; see generally Matter of Vandusen v. Riggs , 77 A.D.3d 1355, 1355, 908 N.Y.S.2d 303 [4th Dept. 2010] ). Furthermore, although " ‘not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances’ " ( Matter of Rulinsky v. West , 107 A.D.3d 1507, 1508, 969 N.Y.S.2d 268 [4th Dept. 2013] ; see Matter of Rohr v. Young , 148 A.D.3d 1681, 1681, 50 N.Y.S.3d 653 [4th Dept. 2017] ; Matter of Tuttle v. Tuttle , 137 A.D.3d 1725, 1725, 28 N.Y.S.3d 755 [4th Dept. 2016] ), and here the 12- and 14-year-old children stated that they wished to spend more time with the mother.
Finally, we reject the father's contention that the court delegated to the children its responsibility to set a visitation schedule (cf. Matter of Lakeya P. v. Ajja M. , 169 A.D.3d 1409, 1411, 92 N.Y.S.3d 787 [4th Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2461559 [2019] ; Matter of Jeffrey T. v. Julie B. , 35 A.D.3d 1222, 1222, 829 N.Y.S.2d 767 [4th Dept. 2006] ), "inasmuch as the record establishes that [the schedule issued by the court] is the product of the court's careful weighing of [the] appropriate factors ..., and it has a sound and substantial basis in the record" ( Matter of Talbot v. Edick , 159 A.D.3d 1406, 1407, 70 N.Y.S.3d 137 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Biernbaum v. Burdick , 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] ). Contrary to the father's contention, the mere fact that the attorney for the children drafted the schedule is of no moment. Orders and judgments are frequently drafted by counsel for the parties (see e.g. Burke v. Burke , 174 A.D.2d 973, 973, 573 N.Y.S.2d 2 [4th Dept. 1991] ; see generally 22 NYCRR 202.48 [c]; Funk v. Barry , 89 N.Y.2d 364, 366-367, 653 N.Y.S.2d 247, 675 N.E.2d 1199 [1996] ) and, absent some error in drafting an order (see e.g. Curet v. DeKalb Realty, LLC , 127 A.D.3d 914, 915-916, 8 N.Y.S.3d 340 [2d Dept. 2015] ), which the father does not allege, it is a fully enforceable order of the court.