Opinion
376 CAF 17–01278
04-26-2019
In the Matter of Gerald JOHNSON, Petitioner–Respondent, v. Nancy JIMERSON, Respondent–Appellant. In the Matter of Luana Jimerson and Daniel Jimerson, Petitioners–Respondents, v. Gerald Johnson, Respondent–Respondent. In the Matter of Luana Jimerson and Daniel Jimerson, Petitioners–Respondents, v. Nancy Jimerson, Respondent–Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT. JENNIFER PAULINO, BUFFALO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT–APPELLANT.
JENNIFER PAULINO, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal from the order insofar as it denied the petitions of petitioners Luana Jimerson and Daniel Jimerson is unanimously dismissed and the order is affirmed without costs.
Memorandum: Respondent mother appeals from an order that, inter alia, granted the petition of petitioner-respondent father to modify a prior custody order by awarding him sole custody of the subject child and denied the petitions of petitioners Luana Jimerson and Daniel Jimerson (maternal grandparents) for custody of the child. Initially, we conclude that the mother waived her contention that the father failed to establish a change in circumstances sufficient to warrant an inquiry into the best interests of the child inasmuch as she consented at trial to custody of the child being transferred to the maternal grandparents (see generally Matter of Rice v. Wightman , 167 A.D.3d 1529, 1530, 90 N.Y.S.3d 774 [4th Dept. 2018] ). In any event, the father made the requisite showing of a change in circumstances by establishing that the mother had an alcohol addiction, and that the child had been residing primarily with the maternal grandparents for approximately two years at the time of the trial in this matter (see Matter of John P.R. v. Tracy A.R., 13 A.D.3d 1125, 1125, 786 N.Y.S.2d 877 [4th Dept. 2004] ).
Finally, we dismiss the appeal from the order insofar as it denied the maternal grandparents' petitions because the mother is not aggrieved by that part of the order (see CPLR 5511 ; Matter of Davis v. Delena , 159 A.D.3d 900, 901, 70 N.Y.S.3d 82 [2d Dept. 2018] ).