Dickes v. Johnston

• Decision Date: 03 February 2023
• Docket Number: 921 CAF 21-01489
• Parties: IN THE MATTER OF TODD E. DICKES, PETITIONER-RESPONDENT-RESPONDENT, v. NICOLE L. JOHNSTON, RESPONDENT-PETITIONER-APPELLANT.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 00572

IN THE MATTER OF TODD E. DICKES, PETITIONER-RESPONDENT-RESPONDENT, v. NICOLE L. JOHNSTON, RESPONDENT-PETITIONER-APPELLANT.

No. 921 CAF 21-01489

Supreme Court of New York, Fourth Department

February 3, 2023

MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR RESPONDENT-PETITIONER-APPELLANT.

MAUREEN POLEN, ROCHESTER, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.

MAUREEN POLEN, ESQ., ATTONEY FOR THE CHILD, APPELLANT.

PRESENT: WHALEN, P.J., SMITH, PERADOTTO, CURRAN, AND BANNISTER, JJ.

Appeals from an order of the Family Court, Monroe County (Julie A Gordon, R.), entered September 15, 2021 in a proceeding pursuant to Family Court Act article 6. The order, among other things, adjudged that the parties shall continue to share joint custody of the subject child.

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

Memorandum In this proceeding pursuant to Family Court Act article 6, respondent-petitioner mother and the Attorney for the Child (AFC) appeal from an order that, inter alia, effectively granted in part petitioner-respondent father's supplemental petition seeking to modify a prior custody order by increasing his parenting time with the subject child.

The mother and the AFC contend that the father failed to establish a change in circumstances sufficient to warrant an inquiry into whether a modification of the prior custody order is in the best interests of the child. The mother however, waived that contention "inasmuch as [she] alleged in her own... petition[] that there had been such a change in circumstances" (Matter of Allison v Seeley-Sick, 199 A.D.3d 1490, 1492 [4th Dept 2021] [internal quotation marks omitted]). In any event, while we agree with the mother and the AFC that Family Court did not expressly determine that there was a sufficient change in circumstances, this Court may "independently review the record to ascertain whether the requisite change in circumstances existed" (Matter of DeVore v O'Harra-Gardner, 177 A.D.3d 1264, 1265 [4th Dept 2019] [internal quotation marks omitted]). Contrary to the contention of the mother and the AFC, our review of the record reveals "extensive findings of fact, placed on the record by [the court]," which demonstrate that a change in circumstances occurred since the entry of the prior custody order (Matter of Aronica v Aronica, 151 A.D.3d 1605, 1605 [4th Dept 2017] [internal quotation marks omitted]). Specifically, affording great weight to the court's assessment of the credibility of the witnesses (see Matter of Paliani v Selapack, 178 A.D.3d 1425, 1426 [4th Dept 2019], lv denied 35 N.Y.3d 905 [2020]), we conclude that the father established that the mother had a pattern of violating the prior custody order (see Matter of Moreno v Elliott, 170 A.D.3d 1610, 1611 [4th Dept 2019]; Matter of Green v Bontzolakes, 111 A.D.3d 1282, 1283-1284 [4th Dept 2013]), and "the evidence that the mother was interfering with the father's visitation with the child[ ] was sufficient to establish the requisite change in circumstances"...