Opinion
255 CAF 16–01814
03-16-2018
In the Matter of Briana Elizabeth MATTICE, Petitioner–Respondent, v. Joseph M. PALMISANO, Respondent–Appellant. (Appeal No. 1.)
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT. LINDA M. CAMPBELL, SYRACUSE, FOR PETITIONER–RESPONDENT. DOUGLAS M. DEMARCHÉ, JR., NEW HARTFORD, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR RESPONDENT–APPELLANT.
LINDA M. CAMPBELL, SYRACUSE, FOR PETITIONER–RESPONDENT.
DOUGLAS M. DEMARCHÉ, JR., NEW HARTFORD, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Respondent-petitioner father contends in appeal No. 1 that Family Court erred in granting the petition of petitioner-respondent mother seeking to modify a prior custody and visitation order by awarding the mother sole legal and primary physical custody of the subject child, and he contends in appeal No. 2 that the court erred in dismissing his cross petition seeking to modify that prior custody and visitation order by awarding him primary physical custody of the child while maintaining joint legal custody.
Contrary to the father's contention in each appeal, "the orders therein do not lack ‘the essential jurisdictional predicate of [the father's] consent’ to have the matters heard and decided by the Referee" ( Matter of Johnson v. Streich–McConnell, 66 A.D.3d 1526, 1527, 886 N.Y.S.2d 539 [4th Dept. 2009] ). The record establishes that the father and his attorney previously signed a stipulation permitting a referee or judicial hearing officer to hear and determine the issues involved in these proceedings, as well as all future proceedings concerning this matter, i.e., custody of and visitation with the child (see Matter of Johnson v. Prichard, 137 A.D.3d 1617, 1617, 26 N.Y.S.3d 907 [4th Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4742488 [2016] ; Johnson, 66 A.D.3d at 1527, 886 N.Y.S.2d 539 ; cf. Matter of Osmundson v. Held–Cummings, 306 A.D.2d 950, 950–951, 761 N.Y.S.2d 923 [4th Dept. 2003] ). To the extent that the father's further jurisdictional challenge is properly before us, we conclude that it lacks merit (see generally Matter of Phelps v. Hunter, 101 A.D.3d 1689, 1689–1690, 957 N.Y.S.2d 526 [4th Dept. 2012], lv denied 20 N.Y.3d 862, 965 N.Y.S.2d 82, 987 N.E.2d 643 [2013] ).
The father contends in appeal No. 1 that the mother failed to establish the requisite change in circumstances subsequent to the entry of the prior order. We reject that contention. "It is well settled that ‘the continued deterioration of the parties' relationship is a significant change in circumstances justifying a change in custody’ " ( Matter of Ladd v. Krupp, 136 A.D.3d 1391, 1392, 24 N.Y.S.3d 834 [4th Dept. 2016] ). We conclude that the court properly concluded that there had been a sufficient change in circumstances inasmuch as "the evidence at the hearing established that ‘the parties have an acrimonious relationship and are not able to communicate effectively with respect to the needs and activities of their child[ ], and it is well settled that joint custody is not feasible under those circumstances' " ( id. ).
The father further contends with respect to both appeals that, even if the requisite change in circumstances occurred, the court erred in granting the mother's petition for sole legal and primary physical custody of the child and instead should have granted his cross petition seeking primary physical custody while maintaining joint legal custody. We also reject that contention. "The court's determination with respect to the child's best interests ‘is entitled to great deference and will not be disturbed [where, as here,] it is supported by a sound and substantial basis in the record’ " ( id. at 1393, 24 N.Y.S.3d 834 ; see Williams v. Williams, 100 A.D.3d 1347, 1348, 953 N.Y.S.2d 421 [4th Dept. 2012] ).
Finally, the father failed to preserve for our review his contention in each appeal that reversal is warranted because the court was biased against him, inasmuch as "he failed to make a motion asking the court to recuse itself" ( Matter of Shonyo v. Shonyo, 151 A.D.3d 1595, 1596, 56 N.Y.S.3d 390 [4th Dept. 2017], lv. denied 30 N.Y.3d 901, 67 N.Y.S.3d 127, 89 N.E.3d 517 [2017] ). In any event, we conclude that the father's contention lacks merit inasmuch as " ‘[t]he record does not establish that the court was biased or prejudiced against [him]’ " ( Matter of Kaylee D. [Kimberly D.], 154 A.D.3d 1343, 1343, 61 N.Y.S.3d 783 [4th Dept. 2017] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.