Opinion
1549 CAF 16–02016
12-22-2017
In the Matter of Tammie Marie SMITH, Petitioner–Respondent, v. Michael David LOYSTER, Sr., Respondent–Appellant.
ADAM H. VANBUSKIRK, AUBURN, FOR RESPONDENT–APPELLANT. PETER J. DIGIORGIO, JR., UTICA, FOR PETITIONER–RESPONDENT. TIMOTHY J. BRENNAN, ATTORNEY FOR THE CHILD, AUBURN.
ADAM H. VANBUSKIRK, AUBURN, FOR RESPONDENT–APPELLANT.
PETER J. DIGIORGIO, JR., UTICA, FOR PETITIONER–RESPONDENT.
TIMOTHY J. BRENNAN, ATTORNEY FOR THE CHILD, AUBURN.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Petitioner mother commenced this proceeding seeking to modify a prior order of custody and visitation pursuant to which respondent father was entitled to visitation with the parties' son for five hours every Sunday. After a hearing, Family Court modified the order by, inter alia, reducing the father's visitation time to five hours every other Saturday.
The father's contention that the court erred in considering an incident that occurred after the petition was filed is not preserved for our review because he did not object on that ground to the admission of testimony concerning the incident (see generally Matter of Angel L.H. [Melissa H.], 85 A.D.3d 1637, 1637, 924 N.Y.S.2d 888 [4th Dept. 2011], lv denied 17 N.Y.3d 711, 932 N.Y.S.2d 426, 956 N.E.2d 1271 [2011] ; Matter of Dustin B. [Donald M.], 71 A.D.3d 1426, 1426, 896 N.Y.S.2d 552 [4th Dept. 2010] ), and we conclude that the reduction of the father's visitation time is supported by a sound and substantial basis in the record (see Matter of Ordona v. Cothern, 126 A.D.3d 1544, 1545, 6 N.Y.S.3d 860 [4th Dept. 2015] ). The court was entitled to credit the mother's testimony that the father was visibly intoxicated on an occasion when she came to drop the child off for visitation (see generally Matter of Rohr v. Young, 148 A.D.3d 1681, 1681, 50 N.Y.S.3d 653 [4th Dept. 2017] ). In view of the father's history of alcohol abuse, that testimony established both a change of circumstances warranting review of the prior order and that modification of the father's visitation was in the best interests of the child (see Matter of Susan B. v. Charles M., 67 A.D.3d 488, 488–489, 889 N.Y.S.2d 143 [1st Dept. 2009], lv. denied 14 N.Y.3d 704, 898 N.Y.S.2d 100, 925 N.E.2d 105 [2010] ; Matter of Kelley v. VanDee, 61 A.D.3d 1281, 1283, 878 N.Y.S.2d 807 [3d Dept. 2009] ; see also Matter of Creek v. Dietz, 132 A.D.3d 1283, 1284, 16 N.Y.S.3d 888 [4th Dept. 2015], lv denied 26 N.Y.3d 914, 23 N.Y.S.3d 640, 44 N.E.3d 938 [2015] ).
We further conclude, however, that the court lacked the authority to condition any future application by the father to modify the custody and visitation order on proof of his "completion of a substance abuse evaluation and completion of any recommended treatment from this evaluation" (see Ordona, 126 A.D.3d at 1546, 6 N.Y.S.3d 860 ; Matter of Vieira v. Huff, 83 A.D.3d 1520, 1522, 922 N.Y.S.2d 684 [4th Dept. 2011] ), and we therefore modify the order accordingly (see Matter of Gorton v. Inman, 147 A.D.3d 1537, 1538, 47 N.Y.S.3d 569 [4th Dept. 2017] ).
It is hereby ORDERED that the order so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by vacating the fourth ordering paragraph and as modified the order is affirmed without costs.