Opinion
807 CAF 22-01496
11-17-2023
In the Matter of Victoria A. PRITTY-PITCHER, Petitioner-Respondent, v. Delbert W. HARGIS, Jr., Respondent-Appellant, and Nicole E. Hargis, Respondent-Respondent. (Appeal No. 1.)
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT-APPELLANT. THE LAW OFFICE OF DONALD A. WHITE, WEBSTER (DONALD A. WHITE OF COUNSEL), FOR PETITIONER-RESPONDENT. KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-RESPONDENT. KIMBERLY A. WOOD, WATERTOWN, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT-APPELLANT.
THE LAW OFFICE OF DONALD A. WHITE, WEBSTER (DONALD A. WHITE OF COUNSEL), FOR PETITIONER-RESPONDENT.
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-RESPONDENT.
KIMBERLY A. WOOD, WATERTOWN, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals in appeal No. 1 from an order that, among other things, found him in contempt of court for failing to comply with a prior order of custody and visitation (prior order) insofar as it granted petitioner, the paternal aunt of the subject child, visitation with the child. In appeal No. 2, the father appeals from an order that, among other things, modified the prior order by awarding petitioner sole legal and physical custody of the child.
In appeal No. 1, the father contends that the prior order was improper insofar as it awarded visitation to a nonparent and that Family Court thus erred in finding him in contempt. "[A]n appeal from a contempt order that is jurisdictionally valid does not bring up for review the prior order" ( Burns v. Grandjean , 210 A.D.3d 1467, 1475, 179 N.Y.S.3d 829 [4th Dept. 2022] ; see Matter of North Tonawanda First v. City of N. Tonawanda , 94 A.D.3d 1537, 1538, 943 N.Y.S.2d 357 [4th Dept. 2012] ). "However misguided and erroneous [the father believed] the court's order ... [to] have been [he] was not free to disregard it and decide for himself the manner in which to proceed" ( Matter of Balter v. Regan , 63 N.Y.2d 630, 631, 479 N.Y.S.2d 506, 468 N.E.2d 688 [1984], cert denied 469 U.S. 934, 105 S.Ct. 333, 83 L.Ed.2d 269 [1984] ; see Burns , 210 A.D.3d at 1475, 179 N.Y.S.3d 829 ). Inasmuch as the father does not contest the jurisdictional validity of the prior order and does not dispute that he violated the order by refusing to abide by the provisions granting visitation to petitioner, we reject his contention that the court erred in finding him in contempt.
Contrary to the father's contention in appeal No. 2, the court was not required to make a finding of extraordinary circumstances prior to addressing the merits of petitioner's amended modification petition. Although a nonparent generally lacks standing to seek custody, a nonparent may establish standing upon a showing of extraordinary circumstances (see Matter of Byler v. Byler , 207 A.D.3d 1072, 1072-1073, 170 N.Y.S.3d 459 [4th Dept. 2022], lv denied 39 N.Y.3d 901, 2022 WL 11448472 [2022] ). Here, the court determined in a prior order in this matter that petitioner established the existence of extraordinary circumstances, and that finding "cannot be revisited in a subsequent proceeding seeking to modify custody" ( Matter of Green v. Green , 139 A.D.3d 1384, 1385, 31 N.Y.S.3d 371 [4th Dept. 2016] ; see Matter of Van Dyke v. Cole , 121 A.D.3d 1584, 1585, 994 N.Y.S.2d 219 [4th Dept. 2014] ).
We likewise reject the father's contention that the court erred in determining that it was in the best interests of the child to award sole legal and physical custody to petitioner. In determining whether a requested custody modification is in the best interests of the child, "the court must consider all factors that could impact the best interests of the child, including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of each [party] to provide for the child's emotional and intellectual development and the wishes of the child" ( Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] ; see Eschbach v. Eschbach , 56 N.Y.2d 167, 172-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Matter of Wojciulewicz v. McCauley , 166 A.D.3d 1489, 1490, 87 N.Y.S.3d 422 [4th Dept. 2018], lv denied 32 N.Y.3d 918, 2019 WL 1285119 [2019] ). The court is "in the best position to evaluate the character and credibility of the witnesses" ( Matter of Nunnery v. Nunnery , 275 A.D.2d 986, 987, 713 N.Y.S.2d 417 [4th Dept. 2000] ), and this Court will not set aside a court's determination regarding custody "unless it lacks an evidentiary basis in the record" ( Matter of Bryan K.B. v. Destiny S.B. , 43 A.D.3d 1448, 1449, 844 N.Y.S.2d 535 [4th Dept. 2007] ; see Matter of Nordee v. Nordee , 170 A.D.3d 1636, 1637, 94 N.Y.S.3d 900 [4th Dept. 2019], lv denied 33 N.Y.3d 909, 2019 WL 2588142 [2019] ; Matter of Hill v. Rogers , 213 A.D.2d 1079, 1079, 625 N.Y.S.2d 991 [4th Dept. 1995] ). We conclude that the court's custody determination is supported by a sound and substantial basis in the record and should not be disturbed (see Nordee , 170 A.D.3d at 1637, 94 N.Y.S.3d 900 ). Among other things, the father had absconded with the child to another state and had repeatedly interfered with petitioner's ability to see the child who she raised for the majority of the child's life. Thus, although the father and petitioner both appear on this record to be capable of caring for the child, the court, in making its custody and visitation determination, properly considered, among other factors, the father's contempt of court, his disregard for the child's relationship with a person the child considers to be her mother, and the child's wishes.
The father's contention that the court erred in granting temporary custody to petitioner during the pendency of these proceedings is moot inasmuch as the order of temporary custody has been superseded by the order in appeal No. 2 (see Matter of Labella v. Robertaccio , 191 A.D.3d 1457, 1458-1459, 138 N.Y.S.3d 439 [4th Dept. 2021] ; Matter of Gorton v. Inman , 147 A.D.3d 1537, 1538, 47 N.Y.S.3d 569 [4th Dept. 2017] ; Matter of Kirkpatrick v. Kirkpatrick , 137 A.D.3d 1695, 1696, 28 N.Y.S.3d 202 [4th Dept. 2016] ).
Respondent mother's challenge to the dismissal with prejudice of her petition seeking modification of an amended custody order is not properly before us inasmuch as the mother did not appeal from the order dismissing her petition (see Byler , 207 A.D.3d at 1076, 170 N.Y.S.3d 459 ; Matter of Timothy M.M. v. Doreen R. , 188 A.D.3d 1711, 1713, 137 N.Y.S.3d 228 [4th Dept. 2020] ).