Sepulveda v. Perez

• Decision Date: 27 December 2011
• Citation: 936 N.Y.S.2d 226,90 A.D.3d 1057,2011 N.Y. Slip Op. 09655
• Parties: In the Matter of Grissel M. SEPULVEDA, appellant, v. Benjamin PEREZ, respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09655

90 A.D.3d 1057

936 N.Y.S.2d 226

In the Matter of Grissel M. SEPULVEDA, appellant,

v.Benjamin PEREZ, respondent.

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

Dec. 27, 2011.

Mark Diamond, New York, N.Y., for appellant, and appellant pro se.

Daniel E. Lubetsky, Jamaica, N.Y., attorney for the child.

WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In related proceedings pursuant to Family Court Act article 6 and a family offense proceeding pursuant to Family Court Act article 8, the mother appeals from an order of the Family Court, Queens County (Richroath, J.), dated January 28, 2010, which, after a hearing, in effect, (1) granted the father's motion to dismiss, inter alia, her family offense petition, (2) modified a prior order of visitation of the same court dated April 30, 2004, so as to require that the mother's visitation with the subject child be supervised, and (3) granted that branch of the motion of the attorney for the child which was to prohibit her from engaging in any communications with the media about this case, about the respondent, or about the subject child, and to prohibit her from providing any personal information relating to the subject child to any website or Internet location.

ORDERED that the order dated January 28, 2010, is modified, on the law and the facts, by deleting the provision thereof granting that branch of the motion of the attorney for the child which was to prohibit her from engaging in any communications with the media about this case, about the respondent, or about the subject child, and to prohibit her from providing any personal information relating to the subject child to any website or Internet location, and substituting therefor a provision denying that branch of the motion; as so modified, the order dated January 28, 2010, is affirmed, without costs or disbursements.

“The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record” ( Matter of DosReis v. Rousseau, 85 A.D.3d 1028, 1029, 925 N.Y.S.2d 849 [internal quotation marks omitted]; see Matter of Richardson v. Richardson, 80 A.D.3d 32, 910 N.Y.S.2d 149; see Matter of Luke v. Luke, 72 A.D.3d 689, 897 N.Y.S.2d 655). Here, the Family Court was presented with sharply conflicting testimony as to whether the father harassed the mother. The Family Court's determination that the mother failed to establish that a family offense was committed was based upon its assessment of the credibility of the parties, and is supported by the record ( see Matter of DosReis v. Rousseau, 85 A.D.3d 1028, 925 N.Y.S.2d 849; Matter of Richardson v. Richardson, 80 A.D.3d 32, 910 N.Y.S.2d 149). Accordingly, we decline to disturb the Family Court's determination.

Furthermore, contrary to the mother's contention, the Family Court did not err in modifying a prior order of visitation so as to require that her visitation with the child be supervised without conducting a hearing on that issue. Once a visitation order is entered, it may be modified only where “there has been a subsequent change of circumstances and modification is required” (Family Ct. Act § 467[b]; see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526). Although, in general, an evidentiary hearing is necessary regarding a modification of visitation, “a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child's best interest” ( Matter of Hom v. Zullo, 6 A.D.3d 536, 536, 775 N.Y.S.2d 66; see Matter of Lamarche v. Jessie, 74 A.D.3d 1341, 1341–1342, 904 N.Y.S.2d 176). Here, in light of, inter alia, the parties' numerous court appearances and submissions, and the Family Court's near-constant supervision of this matter, we conclude that the Family Court possessed sufficient information to render an informed determination consistent with the best interests of the child. Furthermore, the record supports a finding that modification of the prior visitation order so as to require...