Shaffer v. Woodworth

• Decision Date: 27 September 2019
• Docket Number: 800,CAF 18–00758
• Citation: 175 A.D.3d 1803,109 N.Y.S.3d 795
• Parties: In the Matter of Kenneth A. SHAFFER, Petitioner–Respondent-Appellant, v. Teri M. WOODWORTH, Respondent-Petitioner–Respondent.
• Court: New York Supreme Court — Appellate Division

175 A.D.3d 1803

109 N.Y.S.3d 795

In the Matter of Kenneth A. SHAFFER, Petitioner–Respondent-Appellant,

v.Teri M. WOODWORTH, Respondent-Petitioner–Respondent.

CAF 18–00758

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

Entered: September 27, 2019

DAVID J. PAJAK, ALDEN, FOR PETITIONER–RESPONDENT–APPELLANT.

MARK & GRABER, PLLC, MEDINA (LANCE J. MARK OF COUNSEL), FOR RESPONDENT–PETITIONER–RESPONDENT.

CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

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

Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, petitioner-respondent father filed a petition seeking to modify a prior consent order of custody and visitation by providing him with unsupervised visitation with the subject child. Respondent-petitioner mother filed a cross petition seeking to reduce the father's supervised visitation to one day per week. The father now appeals from an order that, in essence, denied the petition and granted the cross petition. We affirm.

Initially, we conclude that the father "waived [his] contention that the [mother] failed to establish a change of circumstances warranting an inquiry into the best interests of the child[ ] inasmuch as the [father] alleged in [his] ... petition that there had been such a change in circumstances" ( Matter of Biernbaum v. Burdick , 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] ; see Matter of Rice v. Wightman , 167 A.D.3d 1529, 1530, 90 N.Y.S.3d 774 [4th Dept. 2018], lv denied 33 N.Y.3d 903, 2019 WL 1997567 [2019] ).

Contrary to the father's contention, Family Court did not abuse its discretion in discontinuing his Sunday visitation. It is well settled that " ‘[t]he propriety of visitation is generally left to the sound discretion of Family Court[,] whose findings are accorded deference by this Court and will remain undisturbed unless lacking a sound basis in the record’ " ( Matter of Robert AA. v. Colleen BB. , 101 A.D.3d 1396, 1397, 956 N.Y.S.2d 642 [3d Dept. 2012], lv denied 20 N.Y.3d 860, 2013 WL 535800 [2013] ; see Matter of Golda v. Radtke , 112 A.D.3d 1378, 1378, 977 N.Y.S.2d 843 [4th Dept. 2013] ). Here, we conclude that a sound and substantial basis in the record supports the court's determination to reduce the father's visitation. Specifically, the record establishes that the Sunday visits interfered with the child's other activities and that the father failed to avail himself of his Sunday visitation on numerous occasions (see Golda , 112 A.D.3d at 1378, 977 N.Y.S.2d 843 ; cf. Matter of Gorton v. Inman , 147 A.D.3d 1537, 1538, 47 N.Y.S.3d 569 [4th Dept. 2017] ).

We also reject the father's contention that the court should have permitted him to have unsupervised visitation. "Courts have broad discretion in determining whether visits should be supervised" ( Matter of Campbell v. January , 114 A.D.3d 1176, 1177, 979 N.Y.S.2d 740 [4th Dept. 2014], lv denied 23 N.Y.3d 902, 2014 WL 1810582 [2014] ; see Matter of Procopio v. Procopio , 132 A.D.3d 1243, 1244, 16 N.Y.S.3d 879 [4th Dept. 2015], lv denied 26 N.Y.3d 915, 2015 WL 9143671 [2015] ), and we conclude that there is a sound and...