Sullivan v. Plotnick

• Decision Date: 28 December 2016
• Parties: In the Matter of Daria M. SULLIVAN, respondent-appellant, v. Steven S. PLOTNICK, appellant-respondent. (Proceeding No. 1) In the Matter of Steven S. Plotnick, appellant-respondent, v. Daria M. Sullivan, respondent-appellant. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 1018

47 N.Y.S.3d 329

In the Matter of Daria M. SULLIVAN, respondent-appellant,

v.Steven S. PLOTNICK, appellant-respondent. (Proceeding No. 1)

In the Matter of Steven S. Plotnick, appellant-respondent,

v.Daria M. Sullivan, respondent-appellant. (Proceeding No. 2).

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

Dec. 28, 2016.

Rhonda R. Weir, Brooklyn, NY, for appellant-respondent.

William A. Sheeckutz, East Meadow, NY, for respondent-appellant.

Arza Feldman, Uniondale, NY (Steven Feldman of counsel), attorney for the child.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Appeals by the father and cross appeals by the mother from (1) an order of the Family Court, Nassau County (Elaine Jackson Stack, J.H.O.), dated April 5, 2013, and (2) an order of that court (Edmund M. Dane, J.), dated June 26, 2014. The order dated April 5, 2013, after a hearing, inter alia, denied that branch of the father's amended petition which was to modify a prior amended consent order of that court and granted his petition to vacate his child support obligation to the extent of directing him to pay 50% of his child support obligation to the mother and the remaining 50% to the mother's attorney to hold in escrow pending the mother's active participation in restoring the parental access rights of the father. The order dated June 26, 2014, upon confirming the report of a Judicial Hearing Officer (Elaine Jackson Stack, J.H.O.), dated January 16, 2014, made after a hearing, in effect, found the mother in violation of the order dated April 5, 2013, denied that branch of the father's amended petition which was to award him sole custody of the parties' children, terminated the father's support obligation and returned partial support payments to him, and vacated prior orders of parental access for the father.

ORDERED that the appeals and cross appeals from so much of the orders as relate to the parties' son, except as they relate to the issue of child support, are dismissed as academic, without costs or disbursements; and it is further,

ORDERED that the order dated April 5, 2013, is affirmed insofar as reviewed, without costs or disbursements; and it is further,

ORDERED that the order dated June 26, 2014, is affirmed insofar as reviewed, without costs or disbursements.

The parties, who were never married, have two children together. By a consent order of custody and visitation dated October 25, 2004, as amended by a consent order of custody and visitation dated December 19, 2005 (hereinafter together the custody and visitation orders), the mother was awarded physical custody of the children and the father was awarded visitation. In 2007, the mother petitioned to modify the parental access schedule provided for in the custody and visitation orders. The Family Court granted the father's cross motion to dismiss the mother's petition without a hearing. On a prior appeal, this Court reversed the order and remitted the matter for a hearing on the mother's petition (see Matter of Sullivan v. Plotnick, 61 A.D.3d 883, 876 N.Y.S.2d 891 ). In 2010, the father filed a petition to modify the custody and visitation orders so as to award him sole custody of the children, alleging that the mother interfered with his parenting time.

In July 2010, while these proceedings were pending, the children's paternal uncle contacted them, and revealed that the father had been previously married, and that they had two older siblings. It is undisputed that the children were upset that the father had withheld this information from them, and that the disclosure prompted them to refuse to visit or communicate with the father. In an attempt to rehabilitate the relationship between the father and the children, the Family Court directed therapeutic visitation in an order dated August 18, 2010. The father subsequently filed two motions alleging that the mother had violated the orders directing therapeutic visitation. He also filed a petition to vacate a support order dated December 21, 2007, and an amended petition to modify the custody and visitation orders so as to award him sole physical and legal custody of the subject children, alleging that the mother had alienated the children from him. After a hearing on the father's violation motions, by order dated September 6, 2011, the Family Court found that the mother wilfully violated the orders directing therapeutic visitation.

After further hearings on the parties' modification petitions, by order dated April 5, 2013 (hereinafter the April 2013 order), the Family Court, inter alia, denied that branch of the father's amended petition which was to modify the custody and visitation orders so as to award him sole custody, found that the mother had alienated the children, and granted that branch of the father's petition to vacate his support obligation to the extent of directing him to pay 50% of his child support obligation to the mother, and to pay the remaining 50% of his child support obligation to the mother's attorney to hold in an escrow account, pending the mother's active participation in restoring the parental access rights of the father.

As is relevant to these appeals, by order dated June 26, 2014, after a hearing, the Family Court confirmed a report of the Judicial Hearing Officer finding that the mother wilfully violated the April 2013 order by failing to affirmatively act to restore the parental access rights of the father and interfering with the children's relationship with the father, and recommending, inter alia, that the father's support obligation be terminated, that funds received by the mother's attorney as partial payment of the father's support obligation be refunded to the father, that the branch of the father's amended petition which was to modify the custody orders be denied, and that prior orders directing parental access for the father be vacated.

The Family Court has jurisdiction to direct custody and visitation of minor children, who are defined under the Family Court Act as "person[s] who [have] not attained the age of eighteen years" (Family Ct. Act §§ 119[c] ; 651). Since the parties' son is now over the age of 18, he is no longer subject to an order directing custody and visitation (see Matter of Lozada v. Pinto, 7 A.D.3d 801, 801, 776 N.Y.S.2d 860 ). Thus, the appeals and cross appeals from so much of the orders as relate to the parties' son must be dismissed as academic, except as they relate to the issue of child support.

With respect to the parties' daughter, who is now 17 years old, modification of an existing custody or...