Little v. Little

• Decision Date: 22 August 2019
• Docket Number: 695,CAF 18–01398
• Citation: 108 N.Y.S.3d 630,175 A.D.3d 1070
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Monica LITTLE, Petitioner–Respondent–Appellant, v. Scott LITTLE, Respondent–Petitioner–Respondent. Victoria L. King, Attorney for the Children, Appellant. (Appeal No. 1.)

175 A.D.3d 1070
108 N.Y.S.3d 630

In the Matter of Monica LITTLE, Petitioner–Respondent–Appellant,
v.
Scott LITTLE, Respondent–Petitioner–Respondent.

Victoria L. King, Attorney for the Children, Appellant. (Appeal No. 1.)

695
CAF 18–01398

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

Entered: August 22, 2019

CARA A. WALDMAN, FAIRPORT, FOR PETITIONER–RESPONDENT–APPELLANT.

VICTORIA L. KING, CANANDAIGUA, ATTORNEY FOR THE CHILDREN, APPELLANT PRO SE.

KAMAN, BERLOVE, MARAFIOTI, JACOBSTEIN & GOLDMAN, LLP, ROCHESTER (GARY MULDOON OF COUNSEL), FOR RESPONDENT–PETITIONER–RESPONDENT.

PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, TROUTMAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

175 A.D.3d 1070

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion insofar as it seeks to dismiss the amended petition is denied, the amended petition is reinstated, and the matter is remitted to Family Court, Ontario County, for further proceedings in accordance with the following memorandum: Petitioner-respondent mother and respondent-petitioner father are the parents of two children and were divorced by a judgment entered on December

108 N.Y.S.3d 631

1, 2017. The judgment provided that the parties shall have joint legal and equal shared physical custody and residency of the children in accordance with the parties' September 2017 settlement agreement. Shortly thereafter, on December 7, 2017, the mother filed a family offense petition,

175 A.D.3d 1071

alleging that the father committed offenses against her that constituted harassment in the first or second degree. In February 2018, the mother filed an amended petition seeking to modify the custody agreement and an order to show cause to modify the custody agreement. The mother and the Attorney for the Children (AFC) now appeal from orders granting the father's motion insofar as it sought to dismiss the amended petition (appeal No. 1) and vacate the order to show cause (appeal No. 2). They also appeal from an order granting the father's separate motion insofar as it sought to dismiss the family offense petition (appeal No. 3).

Initially, with respect to appeal Nos. 1 and 2, we reject the contention of the mother and the AFC that the father waived his contention that the mother had not alleged a sufficient change in circumstances warranting an inquiry into whether modification of the custody agreement is in the children's best interests. Although the father filed a cross petition seeking modification of the custody agreement and alleged a change in...