Heyer v. Heyer

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before CASEY; WEISS; CASEY
• Citation: Heyer v. Heyer, 491 N.Y.S.2d 476, 112 A.D.2d 539 (N.Y. App. Div. 1985)
• Decision Date: 11 July 1985
• Parties: In the Matter of Beau HEYER, Appellant, v. Dawn HEYER, Respondent.

Page 476

491 N.Y.S.2d 476

112 A.D.2d 539

In the Matter of Beau HEYER, Appellant, v. Dawn HEYER, Respondent.

Supreme Court, Appellate Division Third Department.

July 11, 1985.

Edward D. Falso, Schenectady, for appellant.

Before CASEY, J.P., and WEISS, MIKOLL, LEVINE and HARVEY, JJ.

WEISS, Justice.

Appeal from an order of the Family Court of Schenectady County, entered March 27, 1984, which dismissed without prejudice petitioner's application to enforce an order of visitation and granted respondent's cross petition to suspend the order.

Petitioner seeks enforcement of an order dated July 28, 1981 providing visitation with his two minor children, Dawn and Derek, every Sunday between the hours of 10:00 A.M. and 7:00 P.M. Petitioner lived with his sister in Rensselaer County and was required to pick the children up at respondent's residence in Schenectady County, take them back to his home during the day, and then return them to respondent. Petitioner did not drive and was required to either engage the assistance of another or take the bus in transporting the children. Respondent submitted an affidavit in opposition and cross-petitioned to suspend petitioner's rights under the July 28, 1981 order.

At a hearing on January 24, 1984, petitioner testified that he made 20 to 30 attempts to exercise his visitation rights and was allowed to do so only once. Respondent denied thwarting petitioner's visitation attempts, testifying that petitioner visited the children twice in August 1981 and then not again until April 1982, at which time she was required to call the police because he ostensibly was drunk. Petitioner made no further efforts to contact the children until commencement of this proceeding. Respondent further indicated that the children were afraid of petitioner and that Derek required psychiatric counseling. Upon an adjournment of the proceedings, Family Court issued a temporary order suspending petitioner's visitation rights.

Petitioner failed to appear at the reconvened hearing on February 24, 1984 when his attorney indicated that he was ill and that an adjournment was necessary to secure a witness. Family Court refused to grant an adjournment and dismissed the petition for failure to prosecute, without prejudice. Family Court further granted respondent's cross petition to suspend visitation.

On this appeal, petitioner contends that Family Court erred in refusing his request for an adjournment and in suspending his rights to visitation. The granting of an adjournment rests within the trial court's discretion (CPLR 4402; Woertler v. Woertler, App.Div., 488 N.Y.S.2d 265). The record demonstrates that Family Court had ample basis to refuse an adjournment. Petitioner's excuse, feeble at best, was consistent with his lax attitude toward his visitation rights. Despite his obvious transportation problems, petitioner failed to take any deliberate steps to alter his situation. Considering respondent's testimony, which Family Court was authorized to...