Opinion
1135 CAF 18–00105
12-20-2019
In the Matter of Vanessa A. VACCARO, Petitioner–Respondent, v. Matthew J. VACCARO, Respondent–Appellant. In the Matter of Vanessa A. Vaccaro, Petitioner–Respondent, v. Matthew J. Vaccaro, Respondent–Appellant. In the Matter of Matthew J. Vaccaro, Petitioner–Appellant, v. Vanessa A. Vaccaro, Respondent–Respondent.
BRUCE C. ENTELISANO, ROME, FOR RESPONDENT–APPELLANT AND PETITIONER–APPELLANT. RHEINHARDT & BRAY, P.C., ROME (JAMES S. RIZZO OF COUNSEL), FOR PETITIONER–RESPONDENT AND RESPONDENT–RESPONDENT. SHARON P. O'HANLON, SYRACUSE, ATTORNEY FOR THE CHILD.
BRUCE C. ENTELISANO, ROME, FOR RESPONDENT–APPELLANT AND PETITIONER–APPELLANT.
RHEINHARDT & BRAY, P.C., ROME (JAMES S. RIZZO OF COUNSEL), FOR PETITIONER–RESPONDENT AND RESPONDENT–RESPONDENT.
SHARON P. O'HANLON, SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Family Court Act articles 6 and 8, respondent-petitioner father appeals from an order that, inter alia, granted the petitions of petitioner-respondent mother insofar as they sought to modify the visitation provisions of the judgment of divorce order by eliminating the father's morning visits with the child.
Initially, we note that, contrary to the father's contention, the gaps in the trial transcript resulting from inaudible parts of the audio recording "are not so significant as to preclude meaningful review of the order on appeal" ( Matter of Van Court v. Wadsworth , 122 A.D.3d 1339, 1340, 996 N.Y.S.2d 448 [4th Dept. 2014], lv denied 24 N.Y.3d 916, 2015 WL 652170 [2015] ; cf. Matter of Alessio v. Burch , 78 A.D.3d 1620, 1620, 910 N.Y.S.2d 713 [4th Dept. 2010] ; Matter of Jordal v. Jordal, 193 A.D.2d 1102, 1102, 598 N.Y.S.2d 412 [4th Dept. 1993] ).
We reject the father's further contention that Family Court erred in failing to apply the extraordinary circumstances standard when evaluating the mother's modification petitions. "Once a visitation order is entered, it may be modified only ‘upon a showing that there has been a subsequent change of circumstances and modification is required’ ... Extraordinary circumstances are not a prerequisite to obtaining a modification; rather, the ‘standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered’ " ( Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526 [2004] ; see Matter of Macri v. Brown, 133 A.D.3d 1333, 1333–1334, 20 N.Y.S.3d 804 [4th Dept. 2015] ; Matter of Rivera v. Fowler, 112 A.D.3d 835, 835–836, 978 N.Y.S.2d 48 [2d Dept. 2013] ; Matter of Grunwald v. Grunwald, 108 A.D.3d 537, 539, 968 N.Y.S.2d 575 [2d Dept. 2013] ). It is well settled that " ‘the continued deterioration of the parties' relationship is a significant change in circumstances’ " warranting an inquiry into whether a modification of visitation is in the child's best interests ( Matter of Noble v. Gigon, 165 A.D.3d 1640, 1640, 82 N.Y.S.3d 923 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019] ), and we agree with the court that such a further deterioration occurred here after the entry of the judgment of divorce.
Contrary to the father's contention, we conclude that the court conducted a proper best interests analysis and that a sound and substantial basis in the record supports its determination that it is in the child's best interests to eliminate the father's morning visits (see generally Matter of Shaffer v. Woodworth, 175 A.D.3d 1803, 1804, 109 N.Y.S.3d 795 [4th Dept. 2019] ; Matter of Biernbaum v. Burdick, 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] ). We have considered the father's remaining contentions and conclude that none warrants reversal or modification of the order.