Fowler v. Rothman

198 A.D.3d 1374

156 N.Y.S.3d 618

In the Matter of Elizabeth J. FOWLER, Petitioner-Respondent-Appellant,

v.David L. ROTHMAN, Respondent-Petitioner-Respondent.

841

CAF 19-00745

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

Entered: October 8, 2021

D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR PETITIONER-RESPONDENT-APPELLANT.

LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT-PETITIONER-RESPONDENT.

RALPH A. COGNETTI, SYRACUSE, ATTORNEY FOR THE CHILDREN.

PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.

Memorandum: In this Family Court Act article 6 proceeding, petitioner-respondent mother appeals from an amended order that, inter alia, granted respondent-petitioner father's cross petition to modify the parties’ judgment of divorce by awarding him sole legal and physical custody of the subject children. We affirm.

Initially, we take judicial notice of the fact that, subsequent to the issuance of the amended order on appeal, Family Court issued an order in October 2020 modifying the mother's visitation arrangement with the children. That order expressly provided, however, that the directive contained in the amended order on appeal granting the father sole legal and physical custody of the children "shall continue," and the October 2020 order did not state that the amended order on appeal was being superseded or vacated. Consequently, we conclude that the mother's appeal, which challenges only the court's custody determination, is not moot (see Matter of Nicole B. v. Franklin A. , 185 A.D.3d 1166, 1166, 127 N.Y.S.3d 626 [3d Dept. 2020] ; Matter of William O. v. Wanda A. , 151 A.D.3d 1189, 1190, 55 N.Y.S.3d 810 [3d Dept. 2017], lv denied 30 N.Y.3d 902, 67 N.Y.S.3d 128, 89 N.E.3d 518 [2017] ; Matter of Blagg v. Downey , 132 A.D.3d 1078, 1079, 18 N.Y.S.3d 219 [3d Dept. 2015] ).

With respect to the merits, we conclude that the mother "waived her contention that the father failed to establish a change of circumstances warranting an inquiry into the best interests of the children inasmuch as [she] alleged in her own ... petition that there had been such a change in circumstances" ( Matter of Biernbaum v. Burdick , 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] ; see Matter of Verne v. Hamilton , 191 A.D.3d 1433, 1433-1434, 138 N.Y.S.3d 431 [4th Dept. 2021] ). In any event, we agree with the father that he established the requisite change in circumstances based on the deterioration of the parties’ relationship and ability to work together to co-parent the children (see 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] ; Werner v. Kenney , 142 A.D.3d 1351, 1351-1352, 38 N.Y.S.3d 314 [4th Dept. 2016] ), as well as the mother's repeated unsubstantiated allegations that the father abused the children, none of which ultimately resulted in any indicated reports (see Nicole B. , 185 A.D.3d at 1166-1167, 127 N.Y.S.3d 626 ; Matter of Anthony JJ. v. Joanna KK. , 182 A.D.3d 743, 744, 122 N.Y.S.3d 725 [3d Dept. 2020] ; Matter of Howden v. Keeler , 85 A.D.3d 1561, 1561-1562, 924 N.Y.S.2d 880 [4th Dept. 2011] ).

Contrary to the mother's further contention, we conclude that the court did not err in determining that awarding the father sole legal and physical custody of the children is in the children's best interests. Indeed, the record establishes that the court's determination resulted from a "careful weighing of [the] appropriate factors ..., and ... has a sound and substantial basis in the record" ( Matter of Talbot v. Edick , 159 A.D.3d 1406, 1407, 70 N.Y.S.3d 137 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Saletta v. Vecere , 137 A.D.3d 1685, 1686, 28 N.Y.S.3d 522 [4th Dept. 2016] ; see generally Fox v. Fox , 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 [4th Dept. 1992] ). "It is well settled ... that [a] concerted effort by one parent to interfere with the other parent's contact with the child[ren] is so inimical to the best interests of the child[ren] ... as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent" ( Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] [internal quotation marks omitted]). Here, the record supports the court's conclusion that the mother interfered with the father's relationship with the children by making...