Jeremy RR. v. Olivia QQ.

• Decision Date: 09 June 2022
• Docket Number: 533408
• Citation: 206 A.D.3d 1195,170 N.Y.S.3d 294
• Parties: In the Matter of JEREMY RR., Appellant, v. OLIVIA QQ., Respondent.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 1195

170 N.Y.S.3d 294

In the Matter of JEREMY RR., Appellant,

v.OLIVIA QQ., Respondent.

533408

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

Calendar Date: April 19, 2022

Decided and Entered: June 9, 2022

Jane M. Bloom, Monticello, for appellant.

Constantina Hart, Kauneonga Lake, for respondent.

Betty J. Potenza, Highland, attorney for the child.

Before: Lynch, J.P., Clark, Aarons, Colangelo and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.), entered April 20, 2021, which, in a proceeding pursuant to Family Ct Act article 6, granted respondent's motion to dismiss the petition at the close of petitioner's proof.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of a child (born in 2015). Pursuant to a 2018 order, the mother had sole legal and physical custody of the child. The 2018 order did not provide for visitation between the father and the child. In 2020, the father commenced this proceeding to modify the 2018 order by seeking parenting time with the child. At the ensuing fact-finding hearing, the mother moved to dismiss the petition following the close of the father's proof on the basis that the father failed to prove a change in circumstances since the 2018 order. Family Court granted the motion, prompting this appeal by the father. We affirm.

As an initial matter, by drawing a negative inference against the father and finding his testimony to be incredible, Family Court did not abide by the proper standard when assessing the mother's motion made at the close of the father's proof. Having been presented with such a motion, the court was required to accept the father's testimony as true and afford him every favorable inference that could be reasonably drawn from his testimony (see Matter of Donald EE. v. Heidi FF., 198 A.D.3d 1118, 1119, 152 N.Y.S.3d 859 [2021] ; Matter of Thomas KK. v. Anne JJ., 176 A.D.3d 1354, 1355, 112 N.Y.S.3d 789 [2019] ). Despite the court's error, remittal is not required in view of our authority to review the sufficiently developed record and make an independent determination as to whether the requisite change in circumstances existed (see Matter of Janeen MM. v. Jean–Philippe NN., 183 A.D.3d 1029, 1030, 123 N.Y.S.3d 746 [2020], lv dismissed 35 N.Y.3d 1079, 130 N.Y.S.3d 425, 154 N.E.3d 11 [2020] ; Matter of Joseph Q. v. Jessica R., 144 A.D.3d 1421, 1422, 42 N.Y.S.3d 394 [2016] ).

That said, in this modification proceeding, the father bore the threshold burden of establishing a change in circumstances since the entry of the 2018 order (see Matter of Jahleel SS. v. Chanel TT., 201 A.D.3d 1172, 1173, 162 N.Y.S.3d 176 [2022] ; Matter of Shannon X. v. Koni Y., 196 A.D.3d 763, 764, 151 N.Y.S.3d 487 [2021], lv denied 37 N.Y.3d 915, 2021 WL 5902871 [2021] ). As a change in circumstances, the father merely alleged that the mother violated the 2018 order by bringing a third party when he visited with the child and, except for one instance, she failed to produce the child for visitation. The father, however, was not entitled to visitation under the 2018 order due to his longstanding mental health and substance abuse issues. Furthermore, even if the 2018 order could be construed as giving the father visitation, he did not offer testimony relative to his allegations. Accordingly, the father failed to satisfy his burden of showing a change in circumstances (see Matter of Clark v. Ingraham, 88 A.D.3d 1079, 1080, 931 N.Y.S.2d 159 [2011] ; ...