Fowler v. Rothman

2021 NY Slip Op 05436

IN THE MATTER OF ELIZABETH J. FOWLER, PETITIONER-RESPONDENT-APPELLANT, v. DAVID L. ROTHMAN, RESPONDENT-PETITIONER-RESPONDENT.

No. 841 CAF 19-00745

Supreme Court of New York, Fourth Department

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.

Appeal from an amended order of the Family Court, Onondaga County (Julie A. Cecile, J.), entered November 28, 2018 in a proceeding pursuant to Family Court Act article 6. The amended order, among other things, awarded respondent-petitioner sole legal and physical custody of the subject children.

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of the children "shall continue," and the October 2020 order did not state that the amended order on appeal was being superseded or vacated.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 [3d Dept 2020]; Matter of William O. v Wanda A., 151 A.D.3d 1189, 1190 [3d Dept 2017], lv denied 30 N.Y.3d 902 [2017]; Matter of Blagg v Downey, 132 A.D.3d 1078, 1079 [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 [4th Dept 2018]; see Matter of Verne v Hamilton, 191 A.D.3d 1433, 1433-1434 [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 [4th Dept 2018], lv denied 33 N.Y.3d 902 [2019]; Werner v Kenney, 142 A.D.3d 1351, 1351-1352 [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; Matter of Anthony JJ. v Joanna KK., 182 A.D.3d 743, 744 [3d Dept 2020]; Matter of Howden v Keeler, 85 A.D.3d 1561, 1561-1562 [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 [4th Dept 2018] [internal quotation marks omitted]; see Matter of Saletta v Vecere, 137 A.D.3d 1685, 1686 [4th Dept 2016]; see generally Fox v Fox, 177 A.D.2d 209, 210 [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...