Opinion
11-10-2016
In the Matter of Robert E. TROMBLEY, Jr., Petitioner–Respondent, v. Kristin S. PAYNE, Respondent–Appellant. In the Matter of Kristin S. Payne, Petitioner–Appellant, v. Robert E. Trombley, Jr., Respondent–Respondent. (Appeal No. 2.)
Keliann M. Argy, Orchard Park, for Respondent–Appellant and Petitioner–Appellant. Michael Steinberg, Rochester, for Petitioner–Respondent and Respondent–Respondent. Fares A. Rumi, Attorney for the Children, Rochester.
Keliann M. Argy, Orchard Park, for Respondent–Appellant and Petitioner–Appellant.
Michael Steinberg, Rochester, for Petitioner–Respondent and Respondent–Respondent.
Fares A. Rumi, Attorney for the Children, Rochester.
PRESENT: CENTRA, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:Respondent-petitioner mother has not raised any contentions with respect to the order in appeal No. 1, and we therefore dismiss that appeal (see Abasciano v. Dandrea, 83 A.D.3d 1542, 1545, 924 N.Y.S.2d 696 ; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 ). Contrary to the contention of the mother in appeal No. 2, Family Court properly dismissed her cross petition seeking custody because she failed to make the requisite evidentiary showing of a change in circumstances to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement (see Matter of Thompson v. Thompson, 124 A.D.3d 1354, 1354, 1 N.Y.S.3d 655 ; Matter of Miller v. Pederson, 121 A.D.3d 1598, 1599, 993 N.Y.S.2d 860 ). Contrary to the mother's further contention, the court's determination to grant in part the petitioner-respondent father's petition and to modify visitation has a sound and substantial basis in the record (see Matter of Warren v. Miller, 132 A.D.3d 1352, 1354, 17 N.Y.S.3d 535 ).
The court properly denied the mother's objection to the reappointment of the Attorney for the Children (AFC) (see Matter of Mills v. Rieman, 128 A.D.3d 1486, 1487, 8 N.Y.S.3d 812 ; Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 1149, 897 N.Y.S.2d 639 ; Matter of Petkovsek v. Snyder [Appeal No. 6], 251 A.D.2d 1087, 1087–1088, 674 N.Y.S.2d 211 lv. dismissed in part and denied in part 92 N.Y.2d 942, 681 N.Y.S.2d 470, 704 N.E.2d 224 ). In making an appointment of an AFC, “the court shall, to the extent practicable and appropriate, appoint the same attorney who has previously represented the child” (Family Ct. Act § 249[b] ). Inasmuch as there is no support in the record for the mother's contention that the AFC was biased against her, there was no reason for the court to appoint a new AFC (see generally Matter of Kristi L.T. v. Andrew R.V., 48 A.D.3d 1202, 1206, 850 N.Y.S.2d 765, lv. denied 10 N.Y.3d 716, 862 N.Y.S.2d 468, 892 N.E.2d 862 ). Finally, the testimony of the father was sufficient to establish that certain audio recordings “accurately represent[ed] the subject matter depicted,” and thus they were properly admitted in evidence (People v. Patterson, 93 N.Y.2d 80, 84, 688 N.Y.S.2d 101, 710 N.E.2d 665 ; see Zegarelli v. Hughes, 3 N.Y.3d 64, 69, 781 N.Y.S.2d 488, 814 N.E.2d 795 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.