MATTER OF SIMPSON v. Simrell

• Decision Date: 03 July 2002
• Citation: 745 N.Y.S.2d 123,296 A.D.2d 621
• Parties: In the Matter of LESLIE B. SIMPSON, Respondent,<BR>v.<BR>JAMES H. SIMRELL, Appellant.
• Court: New York Supreme Court — Appellate Division

296 A.D.2d 621

745 N.Y.S.2d 123

In the Matter of LESLIE B. SIMPSON, Respondent,

v.JAMES H. SIMRELL, Appellant.

Carpinello, J.

Decided July 3, 2002.

Mercure, J.P., Peters, Mugglin and Lahtinen, JJ., concur.

Carpinello, J.

After a trial on two petitions seeking to modify respondent's visitation with his young daughter, Family Court ordered that the liberal visitation granted to respondent in a prior order be limited to two hours of supervised visitation at his expense. The order also provided that respondent could apply for unsupervised visitation after seven months if he completed an accredited course of at least 12 sessions of anger management. Respondent appeals.

"Whether visitation is appropriate is a matter left to Family Court's sound discretion * * * and its findings, to which deference is to be accorded, will not be disturbed on appeal unless they lack a sound basis in the record * * *" (Matter of Shawn Y., 263 AD2d 687, 688 [citations omitted]). These principles are applicable to our review of the modification of a visitation order to require supervised visitation (see, Matter of Fisk v Fisk, 274 AD2d 691, 692-693), tempered of course by the overriding concern for the best interest of the child (see, Eschbach v Eschbach, 56 NY2d 167, 173). In this case, Family Court's determination to require supervised visitation was based on the finding that respondent was unable to control his anger, a finding that has a sound basis in the record.

In addition to the testimony regarding an incident involving petitioner's fiancé, which resulted in respondent's conviction of aggravated harassment in the second degree, respondent's conduct during the trial demonstrated his inability to control his temper. The transcript reveals that during questioning by petitioner's counsel, respondent was, at best, uncooperative, evasive and argumentative. He also denied having any problem controlling his anger and portrayed himself as an innocent victim in the incident with petitioner's fiancé. Having the additional benefit of observing respondent's demeanor as a witness and as a litigant, Family Court noted that "[t]he Court is frightened by the hostility and uncontrolled anger displayed by [respondent] in the Court, including his outbursts here." Although there is no direct evidence that respondent had ever directed his anger at his daughter or had harmed her in any way, she was present during the incident involving petitioner's fiancé, which frightened her, and his...