Chess v. Lichtman

173 A.D.3d 1178

105 N.Y.S.3d 475

In the Matter of Cheryl CHESS, Appellant,

v.Aaron LICHTMAN, Respondent.

2018–10080

Docket Nos. V–12933–13/13A, V–12934–13/13A, V–12935–13/13A

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 20, 2019

June 26, 2019

The Penichet Firm, P.C., White Plains, N.Y. (Jeanna M. Alberga of counsel), for appellant.

Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Andrew J. Turro of counsel), for respondent.

Jessica Bacal, Mt. Kisco, NY, attorney for the children.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Westchester County (Hal B. Greenwald, J.), dated July 26, 2018. The order, upon an amended order of the same court dated June 8, 2018, granting the father's motion in limine to limit the scope of the fact-finding hearing to the extent of limiting the scope of the hearing to the parties' ability to share joint legal custody of the parties' three youngest children and the father's parental access with the three youngest children based upon changed circumstances since the parties' judgment of divorce, without a hearing, granted the father's motion to dismiss those branches of the mother's petition which were to modify the custody provisions of stipulations of settlement, which were incorporated but not merged into the parties' judgment of divorce, so as to award her sole custody of the parties' three youngest children and dismissed those branches of the mother's petition.

ORDERED that the order dated July 26, 2018, is reversed, on the law, with costs, the father's motion to dismiss those branches of the mother's modification petition relating to the parties' three youngest children is denied, those branches of the petition are reinstated, the father's motion in limine to limit the scope of the fact-finding hearing is denied, the amended order dated June 8, 2018, is modified accordingly, and the matter is remitted to the Family Court, Westchester County, for further proceedings consistent herewith.

The lengthy factual and procedural background of this case is more fully set forth in our decision and order on a prior appeal (see Matter of Chess v. Lichtman, 147 A.D.3d 754, 46 N.Y.S.3d 209 ), and will not be repeated here.

The mother and the father were married and are the parents of four children, ranging in age from 12 to 19 years old. As part of the parties' March 2012 stipulations of settlement, which were incorporated but not merged into their judgment of divorce, the mother was awarded physical custody of the children, with the parties having joint legal custody. The mother was awarded final decision-making authority, on the condition that she first consult with the father, and the father was awarded liberal parental access.

In February 2014, the mother filed a petition to modify the custody provisions of the parties' stipulations of settlement, seeking sole custody of the children. The petition alleged, as a change in circumstances, that the father had sexually abused the oldest child. The allegations of sexual abuse, which had been found to be indicated by the Westchester Department of Social Services (hereinafter DSS) (see Social Services Law § 412[7] ), were also the subject of a child protective proceeding commenced by DSS pursuant to Family Court Act article 10. The Family Court held the mother's modification petition in abeyance pending the outcome of the article 10 proceeding.

In September 2014, the article 10 proceeding was resolved with an order adjourning the matter in contemplation of dismissal, under which the father was not required to admit to any wrongdoing and the Family Court made no findings of fact. The mother had not been permitted to participate in the article 10 proceeding, and the court did not allow the oldest child to provide in camera testimony in that proceeding. In March 2015, pursuant to the terms of the adjournment in contemplation of dismissal, the article 10 proceeding was "dismissed, with prejudice, in furtherance of justice."

Thereafter, in an order dated October 16, 2015, the Family Court, without a hearing, granted the father's motion to dismiss the mother's modification petition. The court determined, inter alia, that the mother "[did] not [make] an evidentiary showing sufficient to warrant a hearing." In a decision and order dated February 1, 2017, this Court reversed, denied the father's motion to dismiss the petition, and remitted the matter to the Family Court, Westchester County, for a hearing on the mother's modification petition, upon determining, inter alia, that the dismissal of the article 10 proceeding pursuant to an adjournment in contemplation of dismissal was not a dismissal on the merits and did not resolve the underlying allegations of sexual abuse (see Matter of Chess v. Lichtman , 147 A.D.3d 754, 46 N.Y.S.3d 209).

After the case was remitted, the Family Court met with the oldest child in camera and issued an order dated June 7, 2017, granting that branch of the mother's petition which was for sole legal and physical custody of the oldest child and terminating the father's parental access with...