Burns v. Grandjean

• Decision Date: 18 November 2022
• Docket Number: 636,CA 20-01367
• Parties: Matthew A. BURNS, Plaintiff-Respondent, v. Jennifer A. GRANDJEAN, Defendant-Appellant. Walter Burkard, Esq., Attorney for the Children, Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 1467

179 N.Y.S.3d 829

Matthew A. BURNS, Plaintiff-Respondent,

v. Jennifer A. GRANDJEAN, Defendant-Appellant.Walter Burkard, Esq., Attorney for the Children, Appellant. (Appeal No. 1.)

636

CA 20-01367

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

Entered: November 18, 2022

MICHAEL STEINBERG, ROCHESTER, FOR DEFENDANT-APPELLANT.

WALTER BURKARD, MANLIUS, ATTORNEY FOR THE CHILDREN, APPELLANT PRO SE.

AFFRONTI, LLC, ROCHESTER (FRANCIS C. AFFRONTI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., CENTRA, LINDLEY, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the twelfth through fifteenth ordering paragraphs is unanimously dismissed (see Loafin’ Tree Rest. v. Pardi [Appeal No. 2] , 162 A.D.2d 985, 985, 559 N.Y.S.2d 51 [4th Dept. 1990] ), and the order is modified on the law by denying that part of plaintiff's February 14, 2020 amended order to show cause seeking to modify the amended judgment of divorce by increasing plaintiff's visitation, that part of plaintiff's March 16, 2020 order to show cause seeking to impose penalties to compel compliance with visitation, and that part of plaintiff's June 18, 2020 order to show cause seeking suspension of his child support obligation, and by vacating the second, third, fifth through tenth, and seventeenth through twenty-third ordering paragraphs, and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: Defendant mother and plaintiff father share joint legal custody of their three children pursuant to a separation agreement (agreement) that was incorporated but not merged into an amended judgment of divorce (judgment). The agreement granted the mother primary physical residence of the children and the father one weekday visit per week and overnight visitation every other weekend. The agreement also allowed the father to seek modification of the visitation schedule if he moved closer to the mother's residence, "which the [c]ourt will determine in the children's best interests."

For a period of time following their divorce, the parties followed a more flexible visitation schedule to accommodate the children's extracurricular activities. After relocating slightly closer to the mother's home, however, the father became less agreeable to the children's requests for flexibility in the visitation schedule. When the children thereafter refused to attend visitation, the father moved by orders to show cause to, among other things, modify the parties’ custody and visitation arrangement, hold the mother in contempt for failing to abide by the visitation schedule, and terminate his child support obligation based on the children's failure to attend visitation. In those applications, the father also sought an award of counsel fees and downward modification of his child support obligation. Before the original order to show cause was served on her, the mother petitioned in Family Court to reduce the father's visitation on the grounds that the children's wishes had changed and that the weekday visits were negatively impacting their school work and sports activities. Upon the father's request, the mother's petitions were transferred to Supreme Court, then denied in an interim order from which no appeal was taken.

At an early appearance, the court suggested imposing its "house rules" on the children and the mother until the children complied with visitation. Those rules barred the children from many activities, including leaving the mother's home except for school and church, using cell phones and other electronic devices, engaging in any extracurricular activities, and conversing with, socializing with, or visiting family and friends. Without holding a hearing, the court issued temporary orders that increased the father's visitation time, directed the mother to enforce that visitation, and imposed the house rules. The mother and the Attorney for the Children (AFC) subsequently requested that the court remove the house rules and hold a hearing to evaluate whether the rules and the visitation schedule were in the children's best interests.

In appeal No. 1, the mother and the AFC appeal from an order that, inter alia, granted in part the father's February 14, 2020 amended order to show cause and June 18, 2020 order to show cause by expanding the father's visitation, suspending his child support obligation, formally imposing the house rules, finding the mother in civil contempt for violating prior court orders, and directing the mother to, among other things, pay the father's counsel fees and the initial costs of reunification therapy in order to purge the contempt.

The mother thereafter moved for leave to reargue her opposition to the father's applications. In addition, the mother and the AFC again requested that the court remove the house rules and hold a best interests hearing. They alleged, among other things, that the father had removed the children's bedroom doors in his house, that he had removed all food from his house, and that the children had called the police during at least one of the visits because the father refused to feed them. The AFC made further requests for a Lincoln hearing as well as counseling to permit the children and the father to rebuild their relationship because the visits were causing mental, emotional, and educational harm to the children. The AFC also moved to, inter alia, suspend the father's visitation pending family therapy, and the father cross-moved to dismiss the AFC's motion and restrict her communication with the children. The father filed additional applications to have the mother held in contempt for further alleged violations of the house rules and also asked the court to force the children to "remain in their bedrooms all day every day except for meals" while at their mother's house if they continued to refuse visitation. In appeal No. 2, the mother and the AFC appeal from an order that, among other things, granted the father's October 23, 2020 cross motion seeking to dismiss the AFC's motion and prohibit the AFC from disclosing pleadings or other court documents to the children and from discussing the documents’ contents with them and granted in part the mother's motion for leave to reargue and, upon reargument, adhered to two of the prior contempt determinations and the penalties previously imposed. In appeal No. 3, the mother appeals from an order that, inter alia, granted in part the father's January 13, 2021 motion seeking, among other things, appointment of a family reunification therapist, required the mother to pay the first $7,500 in reunification therapy costs, and continued the imposition of the house rules. In appeal No. 4, the mother and the AFC appeal from an order that, inter alia, denied the mother's motion for permission to sign a work permit for the parties’ oldest child. In appeal No. 5, the mother and the AFC appeal and the father cross-appeals from an order that, following a hearing on the father's allegations of contempt, found the mother to be in civil contempt for violating the judgment and subsequent orders and penalized the mother for that contempt by, inter alia, sentencing her to six weekends in jail and directing her to pay, inter alia, the AFC's fees, the full costs of reunification therapy, and $20,000 for the father's counsel fees and costs for the contempt proceeding and other unspecified matters. The order also further modified the judgment by assigning the parents certain zones of interest and continued the imposition of the house rules. This Court stayed enforcement of the penalty portions of the order in appeal No. 5.

Initially, we note that the mother and the AFC have not raised any contentions with respect to the order in appeal No. 4, and we therefore dismiss their appeals from that order (see Matter of Dawley v. Dawley [Appeal No. 2] , 144 A.D.3d 1501, 1502, 40 N.Y.S.3d 863 [4th Dept. 2016] ). We further note that each of the remaining orders contains one decretal paragraph, followed by paragraphs with varying names that we deem to be ordering paragraphs, and our modifications are based on that nomenclature.

The mother and the AFC contend in appeal Nos. 1, 3, and 5 that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children's best interests. We agree. We therefore modify the orders in appeal Nos. 1, 3, and 5 accordingly, and we reinstate the provisions of the agreement and remit the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement is the children's best interests.

Where there is "a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children" ( Matter of Lincoln v. Lincoln , 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969] ), and "[a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child[ren], and what will best promote [their] welfare and happiness" ( Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] [internal quotation marks omitted]). Consequently, visitation and "custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ " ( S.L. v. J.R. , 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 [2016], quoting Obey v. Degling , 37 N.Y.2d 768, 770, 375 N.Y.S.2d 91, 337 N.E.2d 601 [1975] ), "[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of" the children's best interests ( Matter of Balls v. Doliver , 72 A.D.3d 1618, 1619, 900 N.Y.S.2d 210 [4th Dept. 2010] [internal quotation marks omitted]).

Here, the...