Opinion
1002 CAF 19-01696
11-19-2021
In the Matter of Jason Paul ALLISON, Petitioner-Respondent, v. Laura Ann SEELEY-SICK, Respondent-Appellant.
HANCOCK ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL), FOR RESPONDENT-APPELLANT. WENDY S. SISSON, GENESEO, FOR PETITIONER-RESPONDENT. EDWARD F. MURPHY, III, HAMMONDSPORT, ATTORNEY FOR THE CHILDREN.
HANCOCK ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL), FOR RESPONDENT-APPELLANT.
WENDY S. SISSON, GENESEO, FOR PETITIONER-RESPONDENT.
EDWARD F. MURPHY, III, HAMMONDSPORT, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., PERADOTTO, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal from the order insofar as it concerns visitation is unanimously dismissed and the order is affirmed without costs.
Memorandum: In this Family Court Act article 6 proceeding, respondent mother appeals from an order (August 2019 order) of Family Court (Cohen, J.) that, inter alia, granted petitioner father's petitions seeking, in effect, to modify a prior amended order (prior order) entered on consent by awarding him sole custody of the subject children, with supervised visitation to the mother. Initially, we take judicial notice of the fact that, subsequent to the issuance of the August 2019 order on appeal, Family Court (Van Allen, J.) issued an order in December 2020 modifying the mother's visitation to supervised visitation in a therapeutic setting, but stating that all other provisions of the August 2019 order that were not modified by the December 2020 order remained in effect. We conclude that the part of the mother's appeal challenging the supervised visitation provision is moot (see Matter of Brooks v. Greene , 153 A.D.3d 1621, 1622, 61 N.Y.S.3d 403 [4th Dept. 2017] ), and we therefore dismiss the appeal from the August 2019 order insofar as it concerns visitation. However, contrary to the contention of the Attorney for the Child, that part of the mother's appeal challenging the determination to grant the father sole custody is not moot (see Matter of Fowler v. Rothman , 198 A.D.3d 1374, 1374-75, 156 N.Y.S.3d 618 [4th Dept. 2021] ; Brooks , 153 A.D.3d at 1622, 61 N.Y.S.3d 403 ).
With respect to the merits, we reject the mother's contention that the court (Cohen, J.) abused its discretion in refusing to recuse itself. "Absent a legal disqualification, ... a [j]udge is generally the sole arbiter of recusal" ( Matter of Murphy , 82 N.Y.2d 491, 495, 605 N.Y.S.2d 232, 626 N.E.2d 48 [1993] ; see People v. Glynn , 21 N.Y.3d 614, 618, 977 N.Y.S.2d 692, 999 N.E.2d 1137 [2013] ; Tripi v. Alabiso , 189 A.D.3d 2060, 2061, 134 N.Y.S.3d 843 [4th Dept. 2020] ), and it is well established that a court's recusal decision will not be overturned absent an abuse of discretion (see People v. Moreno , 70 N.Y.2d 403, 405-406, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ; Matter of McLaughlin v. McLaughlin , 104 A.D.3d 1315, 1316, 961 N.Y.S.2d 838 [4th Dept. 2013] ). Contrary to the mother's contention, the court's knowledge of the prior acts of domestic violence of the mother's husband against his former wife stemmed not from an extrajudicial source, but from a prior judicial proceeding over which the court presided (see Glynn , 21 N.Y.3d at 619, 977 N.Y.S.2d 692, 999 N.E.2d 1137 ; Matter of Christopher D.S. [Richard E.S.] , 136 A.D.3d 1285, 1286, 25 N.Y.S.3d 455 [4th Dept. 2016] ; see generally 22 NYCRR 100.3 [E] [1] [a] [ii]). "Although some of the comments [about the mother's husband] would have been better left unsaid, nothing in the record reveals that any bias on the court's part unjustly affected the result to the detriment of the [mother] or that the court [had] a predetermined outcome of the case in mind during the hearing" ( Matter of Cameron ZZ. v. Ashton B. , 183 A.D.3d 1076, 1081, 123 N.Y.S.3d 737 [3d Dept. 2020], lv denied 35 N.Y.3d 913, 2020 WL 5415202 [2020] [internal quotation marks omitted]; see Matter of Roseman v. Sierant , 142 A.D.3d 1323, 1325, 38 N.Y.S.3d 295 [4th Dept. 2016] ). We perceive no abuse of discretion by the court in denying the mother's recusal motion (see Tripi , 189 A.D.3d at 2061, 134 N.Y.S.3d 843 ; Christopher D.S. , 136 A.D.3d at 1286, 25 N.Y.S.3d 455 ; McLaughlin , 104 A.D.3d at 1316, 961 N.Y.S.2d 838 ).
The mother further contends that the father failed to establish a change in circumstances sufficient to warrant an inquiry into whether a modification of the prior order is in the best interests of the children. The mother, however, waived that contention " ‘inasmuch as [she] alleged in her own ... petition[s] that there had been such a change in circumstances’ " ( Fowler , 198 A.D.3d at 1374, 156 N.Y.S.3d 618 ). In any event, while we agree with the mother that, although the court "failed to make an express finding that there was a change in circumstances, we have the authority to review the record to ascertain whether the requisite change in circumstances existed" ( Matter of Allen v. Boswell , 149 A.D.3d 1528, 1528, 53 N.Y.S.3d 432 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653468 [2017] [internal quotation marks omitted]; see Matter of Grabowski v. Smith , 182 A.D.3d 1002, 1003, 123 N.Y.S.3d 313 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047587 [2020] ), we reject her contention that the father failed to meet his burden. The father established the requisite change in circumstances based on, inter alia, "the deterioration of the parties’ relationship and ability to work together to co-parent the children" ( Fowler , 198 A.D.3d at 1375, 156 N.Y.S.3d 618 ; see Grabowski , 182 A.D.3d at 1003, 123 N.Y.S.3d 313 ; Matter of Biernbaum v. Burdick , 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] ), the mother's violation of the prior order (see Grabowski , 182 A.D.3d at 1003, 123 N.Y.S.3d 313 ; Murray v. Murray , 179 A.D.3d 1546, 1546-1547, 118 N.Y.S.3d 879 [4th Dept. 2020] ), and the exposure of the children to domestic violence at the mother's home subsequent to the entry of the prior order (see Allen , 149 A.D.3d at 1528-1529, 53 N.Y.S.3d 432 ).
Finally, contrary to the mother's contention, we conclude that a sound and substantial basis exists in the record to support the court's determination that an award of sole custody to the father is in the best interests of the children (see Matter of Schram v. Nine , 193 A.D.3d 1361, 1361-1362, 143 N.Y.S.3d 274 [4th Dept. 2021], lv denied 37 N.Y.3d 905, 2021 WL 3927350 [2021] ; Grabowski , 182 A.D.3d at 1003, 123 N.Y.S.3d 313 ; Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] ).