Andross v. Aiello

• Decision Date: 01 May 2020
• Docket Number: 461,CAF 18–01303
• Parties: In the Matter of Douglas B. ANDROSS, Petitioner–Respondent–Respondent, v. Tiffany P. AIELLO, Respondent- Petitioner–Appellant.
• Court: New York Supreme Court — Appellate Division

183 A.D.3d 1266

121 N.Y.S.3d 719 (Mem)

In the Matter of Douglas B. ANDROSS, Petitioner–Respondent–Respondent,

v.Tiffany P. AIELLO, Respondent- Petitioner–Appellant.

461

CAF 18–01303

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

Entered: May 1, 2020

TIFFANY P. AIELLO, RESPONDENT–PETITIONER–APPELLANT PRO SE.

DUKE LAW FIRM, P.C., LAKEVILLE (SUSAN K. DUKE OF COUNSEL), FOR PETITIONER–RESPONDENT–RESPONDENT.

PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

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

Memorandum: Respondent-petitioner mother appeals from an order that, inter alia, continued joint custody of the parties' child and granted in part the petition of petitioner-respondent father by modifying the visitation provisions of a prior order of custody and visitation. We affirm.

We conclude that "the mother waived her contention that the father failed to establish the requisite change in circumstances warranting an inquiry into the best interests of the child[ ] inasmuch as she alleged in her [amended] cross petition that there had been such a change in circumstances" ( Matter of Muriel v. Muriel, 179 A.D.3d 1529, 1529, 118 N.Y.S.3d 861 [4th Dept. 2020] ; see Matter of Rice v. Wightman, 167 A.D.3d 1529, 1530, 90 N.Y.S.3d 774 [4th Dept. 2018], lv denied 33 N.Y.3d 903, 2019 WL 1997567 [2019] ; Matter of Biernbaum v. Burdick, 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] ). In any event, we conclude that the father established the requisite change in circumstances (see Trimarco v. Trimarco, 154 A.D.3d 792, 794, 62 N.Y.S.3d 166 [2d Dept. 2017] ; Matter of Keefe v. Adam, 85 A.D.3d 1225, 1226, 924 N.Y.S.2d 612 [3d Dept. 2011] ; cf. Matter of Bobroff v. Farwell, 57 A.D.3d 1284, 1285, 870 N.Y.S.2d 559 [3d Dept. 2008] ).

Contrary to the mother's further contention, we conclude that Family Court properly determined that modifying the visitation schedule was in the best interests of the child. 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" ( Biernbaum, 162 A.D.3d at 1665, 80 N.Y.S.3d 761 [internal quotation marks omitted]; see Matter of La Scola v. Litz, 258 A.D.2d 792, 793, 685 N.Y.S.2d 862 [3d Dept. 1999], lv denied 93 N.Y.2d 809, 694 N.Y.S.2d 631, 716 N.E.2d 696 [1999] ; Matter of Hartman v. Hartman, 214 A.D.2d 780, 782, 624 N.Y.S.2d 470 [3d Dept. 1995] ). Moreover, given the parties' past acrimony, the court properly determined "that it was appropriate to divide the decision-making authority with respect to the child[ ]" ( Matter of Wideman v. Wideman, 38 A.D.3d 1318, 1319, 834 N.Y.S.2d 405 [4th Dept. 2007] ; see Matter of Delgado v. Frias, 92 A.D.3d 1245, 1245, 937 N.Y.S.2d 814 [4th Dept. 2012] ).

We have reviewed the mother's remaining contentions and conclude that none warrants modification or reversal of the order. Finally, we note that the father's contention that the mother was awarded excessive visitation that should be reduced is not properly before us in the absence of a cross appeal (see Matter of Mercado v. Frye, 104 A.D.3d 1340, 1343, 961 N.Y.S.2d 717 [4th Dept. 2013], lv denied 21 N.Y.3d 859, 2013 WL 3198162 [2013] ; Matter of Kramer v. Berardicurti, 79 A.D.3d 1794, 1794, 913 N.Y.S.2d 856 [4th Dept. 2010], lv denied 16 N.Y.3d 712, 2011 WL 1675391 [2011] ; see also Matter of Briggs v. Briggs, 171 A.D.3d 741, 744, 97 N.Y.S.3d 721 [2d Dept. 2019] ; see generally Hecht v....