Mathewson v. Sessler

• Decision Date: 27 April 2012
• Citation: 2012 N.Y. Slip Op. 03293,94 A.D.3d 1487,943 N.Y.S.2d 326
• Parties: In the Matter of Barney M. MATHEWSON, Jr., Petitioner–Respondent, v. Elizabeth SESSLER, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03293
94 A.D.3d 1487
943 N.Y.S.2d 326

In the Matter of Barney M. MATHEWSON, Jr., Petitioner–Respondent,
v.
Elizabeth SESSLER, Respondent–Appellant.

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

April 27, 2012.

[943 N.Y.S.2d 326]

Linda M. Campbell, Syracuse, for Respondent–Appellant.

Terri Bright, Fabius, for Petitioner–Respondent.

Dennis S. Lerner, Attorney for the Children, Syracuse, for Michael B.M., Kathleen M.M., and Samuel N.M.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

[943 N.Y.S.2d 327]

MEMORANDUM:

[94 A.D.3d 1489] Respondent mother appeals from an order that granted petitioner father's petition seeking to modify the prior order of custody and visitation by, inter alia, awarding him joint legal custody of the parties' three children. The parties previously entered into a stipulation whereby it was agreed that the mother would have “sole legal custody and placement of the children, subject to the [father's] rights of visitation.” The father was to have visitation every other Saturday from 3:00 p.m. to 7:00 p.m. That stipulation was incorporated into the judgment of divorce.

We note at the outset that, although Family Court failed “to set forth ‘the facts it deems essential’ and upon which its determination is based” ( Matter of Whitaker v. Murray, 50 A.D.3d 1185, 1186, 855 N.Y.S.2d 288, quoting CPLR 4213[b]; see generally Family Ct. Act § 165[a] ), remittal of the matter is not required inasmuch as “ ‘the record is ... sufficient to enable this Court to make the requisite findings of fact’ ” ( Matter of Bradbury v. Monaghan, 77 A.D.3d 1424, 1425, 908 N.Y.S.2d 476).

We agree with the mother that the father failed to make a sufficient showing of a change in circumstances to warrant modification of the existing custody arrangement ( see Matter of Gridley v. Syrko, 50 A.D.3d 1560, 1561, 857 N.Y.S.2d 838; cf. Matter of Stacey L.B. v. Kimberly R.L., 12 A.D.3d 1124, 1124–1125, 785 N.Y.S.2d 238, lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092). “[A] long-term custodial arrangement established by agreement[, such as the arrangement herein,] should prevail ‘unless it is demonstrated that the custodial parent is unfit or perhaps less fit’ ” ( Fox v. Fox, 177 A.D.2d 209, 211, 582 N.Y.S.2d 863), and that is not the case here. Contrary to the father's contention, his new employment, which allowed him more free time to spend with the children, and his purchase of a home were insufficient to constitute the requisite change in circumstances. We therefore modify the order by denying that part of the father's...