Opinion
180 CAF 16–02184
02-08-2019
In the Matter of Patrick J. GIBBARDO, Petitioner–Respondent-Appellant, v. Latasha L. RAMOS, Respondent-Petitioner–Respondent.
SUSAN LARAGY, ROCHESTER, FOR PETITIONER-RESPONDENT-APPELLANT.
SUSAN LARAGY, ROCHESTER, FOR PETITIONER-RESPONDENT-APPELLANT.
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner-respondent father appeals from an order that, inter alia, modified a prior order of custody and visitation by reducing his visitation with his son. Contrary to the father's contention that respondent-petitioner mother failed to demonstrate a sufficient change in circumstances warranting a review of the existing custody arrangement, "a change in circumstances exists where, as here, the parents' relationship becomes so strained and acrimonious that communication between them is impossible" ( 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] ; see Matter of Ladd v. Krupp, 136 A.D.3d 1391, 1392, 24 N.Y.S.3d 834 [4th Dept. 2016] ). Contrary to the father's next contention, Family Court did not abuse its discretion in reducing his visitation. It is well settled that "a court's determination regarding ... visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record, i.e., is not supported by a sound and substantial basis in the record" ( Matter of Rulinsky v. West , 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 [4th Dept. 2013] [internal quotation marks omitted]; see Matter of Ordona v. Cothern , 126 A.D.3d 1544, 1545, 6 N.Y.S.3d 860 [4th Dept. 2015] ; Matter of Dubuque v. Bremiller , 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855 [4th Dept. 2010] ). Here, we conclude that there is a sound and substantial basis in the record to support the court's determination.Contrary to the further contention of the father, the court did not abuse its discretion in denying his motion to reopen the proof after he left court early during the first day of the hearing and did not return for the completion of the hearing on the next adjourned date (see Matter of Jayden T. [Amy T.] , 118 A.D.3d 1075, 1076, 987 N.Y.S.2d 645 [3rd Dept. 2014] ; Matter of Orzech v. Nikiel , 91 A.D.3d 1305, 1306, 937 N.Y.S.2d 509 [4th Dept. 2012] ). This is "not an instance in which a party [sought] ‘to reopen and supply defects in evidence which have inadvertently occurred’ "( Matter of Radisson Community Assn., Inc. v. Long , 28 A.D.3d 88, 91, 809 N.Y.S.2d 323 [4th Dept. 2006] ; see Matter of Markham v. Comstock , 38 A.D.3d 1262, 1263–1264, 833 N.Y.S.2d 781 [4th Dept. 2007] ; cf. Matter of Dutchess County Dept. of Social Servs. v. Shirley U. , 266 A.D.2d 459, 460, 698 N.Y.S.2d 535 [2d Dept. 1999] ).