Moreno v. Elliott

• Decision Date: 15 March 2019
• Docket Number: CAF 17–00126,1407
• Parties: In the Matter of Cory MORENO, Petitioner–Respondent, v. Jan ELLIOTT, Respondent–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1610

94 N.Y.S.3d 500 (Mem)

In the Matter of Cory MORENO, Petitioner–Respondent,

v.Jan ELLIOTT, Respondent–Appellant. (Appeal No. 1.)

1407

CAF 17–00126

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

March 15, 2019

ROSEMARIE RICHARDS, GILBERTSVILLE, FOR RESPONDENT–APPELLANT.

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

VIVIAN CLARA STRACHE, BATH, ATTORNEY FOR THE CHILDREN.

PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In appeal No. 1, respondent-petitioner mother appeals from an order that, among other things, modified a prior order of custody and visitation by awarding petitioner-respondent father primary placement of the three subject children and granting visitation to the mother. In appeal No. 2, the mother appeals from an order that dismissed her two petitions seeking a modification of the custody and visitation order at issue in appeal No. 1. We affirm in both appeals.

Addressing first the order in appeal No. 1, we reject the mother's contention that the father failed to make the requisite showing of a change of circumstances to warrant an inquiry into whether the best interests of the children would be served by a modification of the prior custody and visitation order (see Matter of Carey v. Windover , 85 A.D.3d 1574, 1574, 925 N.Y.S.2d 360 [4th Dept. 2011], lv denied 17 N.Y.3d 710, 2011 WL 4357160 [2011] ; Matter of Dormio v. Mahoney , 77 A.D.3d 1464, 1465, 908 N.Y.S.2d 378 [4th Dept. 2010], lv denied 16 N.Y.3d 702, 917 N.Y.S.2d 109, 942 N.E.2d 320 [2011] ). The father met that burden by establishing, inter alia, that the mother, in violation of an existing order, failed to enroll two of the children in counseling, failed to provide him with the children's educational, medical, dental and mental health appointment information (see generally Matter of Green v. Bontzolakes , 111 A.D.3d 1282, 1283, 974 N.Y.S.2d 211 [4th Dept. 2013] ), and also interfered with his "visitation rights and/or telephone access" ( Matter of Murphy v. Wells, 103 A.D.3d 1092, 1093, 958 N.Y.S.2d 560 [4th Dept. 2013], lv denied 21 N.Y.3d 854, 2013 WL 1831640 [2013] [internal quotation marks omitted]; see Matter of Amrane v. Belkhir , 141 A.D.3d 1074, 1075, 34 N.Y.S.3d 823 [4th Dept. 2016] ; Goldstein v. Goldstein , 68 A.D.3d 717, 720, 889 N.Y.S.2d 661 [2d Dept. 2009] ). Contrary to the mother's further contention, we conclude that a sound and substantial basis exists in the record to support Family Court's determination that awarding the father primary placement of the children is in their best interests (see Matter of Cross v. Caswell , 113 A.D.3d 1107, 1107–1108, 977 N.Y.S.2d 853 [4th Dept. 2014] ).

Additionally, the mother contends that the court was not authorized under article 6 of the Family Court Act to make the order of protection, which had been made a condition of the prior custody and visitation order, a condition of the order in appeal No. 1. However, inasmuch as the propriety of that order of protection was determined on the merits in a prior proceeding between the same parties (see Matter of Moreno v. Elliott , 155 A.D.3d 1561, 1562, 63 N.Y.S.3d 778 [4th Dept. 2017], lv dismissed in part and denied in part 30 N.Y.3d 1098, 70 N.Y.S.3d 172, 93 N.E.3d 897 [2018] ), the doctrine of res judicata precludes the mother from challenging it here (see generally Matter of Josey v. Goord , 9 N.Y.3d 386, 389, 849 N.Y.S.2d 497, 880 N.E.2d 18 [2007] ).

Finally, contrary to the mother's contention in appeal No. 2, the court did not err in dismissing her modification petitions without a hearing. It is well settled that "[o]ne who seeks to modify an existing order of [custody and] visitation is not automatically entitled to a hearing[ and] must make some evidentiary showing sufficient to warrant it" ( Matter of Richard R.G. v. Rebecca H. , 34 A.D.3d 1312, 1312, 825 N.Y.S.2d 597 [4th Dept. 2006], lv denied 8 N.Y.3d 804, 830 N.Y.S.2d 700, 862 N.E.2d 792 [2007] [internal quotation marks omitted]; see Matter of Farner v. Farner , 152 A.D.3d 1212, 1213, 60 N.Y.S.3d 613 [4th Dept. 2017] ; see also Matter of Horowitz v. Horowitz, 154 A.D.3d 1207, 1208, 62 N.Y.S.3d 229 [3d Dept. 2017] ), and we conclude that ...