Boggio v. Boggio

• Decision Date: 13 June 2012
• Citation: 96 A.D.3d 834,945 N.Y.S.2d 764,2012 N.Y. Slip Op. 04740
• Parties: In the Matter of John BOGGIO, appellant, v. Susan BOGGIO, respondent. (Proceeding No. 1) In the Matter of Susan Boggio, respondent, v. John Boggio, appellant. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 834

945 N.Y.S.2d 764

2012 N.Y. Slip Op. 04740

In the Matter of John BOGGIO, appellant,

v.Susan BOGGIO, respondent. (Proceeding No. 1)

In the Matter of Susan Boggio, respondent,

v.John Boggio, appellant. (Proceeding No. 2).

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

June 13, 2012.

Bryan L. Salamone & Associates, P.C., Melville, N.Y. (Jeffrey D. Herbst of counsel), for appellant.

Joan L. Beranbaum, New York, N.Y. (Karen A. Webber of counsel), for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Karin Wolfe and Janet Neustaetter of counsel), attorney for the child.

MARK C. DILLON, J.P., RANDALL T. ENG, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In related visitation proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Gruebel, J.), dated May 13, 2011, which, after a hearing, denied his petition to modify the visitation provisions set forth in a stipulation of settlement dated February 13, 2001, which was incorporated but not merged into the parties' judgment of divorce dated August 20, 2001, and granted the mother's petition to modify the visitation provisions to the extent of limiting his visitation and directing him to participate in counseling.

ORDERED that the order is affirmed, with costs.

An existing visitation arrangement may be modified only “upon a showing that there has been a subsequent change of circumstances and modification is required” (Family Ct. Act § 467[b][ii]; see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526;Galanti v. Kraus, 85 A.D.3d 723, 724, 924 N.Y.S.2d 848). The paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances ( see Matter of Wilson v. McGlinchey, 2 N.Y.3d at 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526;Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 96, 447 N.Y.S.2d 893, 432 N.E.2d 765;Galanti v. Kraus, 85 A.D.3d at 724, 924 N.Y.S.2d 848). The determination of visitation issues is entrusted to the sound discretion of the Family Court and will not be disturbed unless it lacks a sound and substantial basis in the record ( see Matter of Crowder v. Austin, 90 A.D.3d 753, 754, 934 N.Y.S.2d 227;Matter of Mohabir v. Singh, 78 A.D.3d 1056, 910 N.Y.S.2d 917).

Here, the Family Court's visitation determination is supported by a sound and substantial basis in the record. The father does not dispute that the breakdown in his relationship with his then 11–year–old daughter and the temporary suspension of visitation constituted a change of circumstances warranting modification of the visitation provisions set forth in the parties' 2001 stipulation of settlement. Further, the record supports the Family Court's determination that it would be in the best interests of the child for visitation to resume incrementally by permitting the father telephone contact three times per week, and weekly unsupervised visitation on Saturdays, which could expand to overnight visits without further court order upon the child's consent. The Family Court gave appropriate weight to the wishes expressed by the child during her in camera interview ( see Matter of Mohabir v. Singh, 78 A.D.3d at 1057, 910 N.Y.S.2d 917;Matter of Mera v. Rodriguez, 73 A.D.3d 1069, 899 N.Y.S.2d 893;Matter of Jennifer WW., 274 A.D.2d 778, 779, 710 N.Y.S.2d 733;Matter of Lozada v. Lozada, 270 A.D.2d 422, 704 N.Y.S.2d 313), without improperly basing its visitation determination solely upon...