Opinion
2011-09-30
In the Matter of Tonya HELLES, Petitioner–Appellant,v.Luke HELLES, Sr., Respondent–Respondent, (Appeal No. 1.).
Wyoming County–Attica Legal Aid Bureau, Livingston County Conflict Defender, Warsaw (Edward L. Chassin of Counsel), for Petitioner–Appellant.Kathleen P. Reardon, Rochester, for Respondent–Respondent.Wendy S. Sisson, Attorney for the Children, Geneseo, for Abigail H., Jasmine H., Isaac H., Luke H., Jr. and Dylan H.
Wyoming County–Attica Legal Aid Bureau, Livingston County Conflict Defender, Warsaw (Edward L. Chassin of Counsel), for Petitioner–Appellant.Kathleen P. Reardon, Rochester, for Respondent–Respondent.Wendy S. Sisson, Attorney for the Children, Geneseo, for Abigail H., Jasmine H., Isaac H., Luke H., Jr. and Dylan H.
MEMORANDUM:
In appeal No. 1, petitioner mother appeals from an order that, inter alia, continued the prior visitation schedule with respect to the parties' children. In appeal No. 2, the mother appeals from an order that, inter alia, dismissed her family offense petition. In appeal No. 3, the mother appeals from an order dismissing two petitions in which she alleged that the father had violated the temporary order of protection. We affirm the order in each appeal. Addressing first the order in appeal No. 3, we conclude that the mother has failed to brief any issues regarding that order, and we therefore deem those issues abandoned ( see Matter of Jezekiah R.-A., 78 A.D.3d 1550, 1551, 910 N.Y.S.2d 806; Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).
Contrary to the mother's contention with respect to the order in appeal No. 1, “ ‘[v]isitation decisions are generally left to Family Court's sound discretion, requiring reversal only where the decision
lacks a sound and substantial basis in the record’ ” ( Matter of Nicole J.R. v. Jason M.R., 81 A.D.3d 1450, 1451, 917 N.Y.S.2d 495, lv. denied 17 N.Y.3d 701, 2011 WL 2183839; see Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684; Matter of Vasquez v. Barfield, 81 A.D.3d 1398, 917 N.Y.S.2d 468). Here, there was a sound and substantial basis in the record for the court's determination to continue the prior visitation schedule inasmuch as it was based on a credibility assessment , and we generally defer to “the court's firsthand assessment of the character and credibility of the parties” ( Matter of Thayer v. Thayer, 67 A.D.3d 1358, 1359, 888 N.Y.S.2d 693; see Nicole J.R., 81 A.D.3d at 1451, 917 N.Y.S.2d 495; Matter of Hill v. Rogers, 213 A.D.2d 1079, 625 N.Y.S.2d 991).
We reject the mother's contention with respect to the order in appeal No. 2 that the court erred in taking sworn testimony from her before issuing a temporary order of protection ( see generally Family Ct. Act § 828; Matter of Ardis S. v. Sanford S., 88 Misc.2d 724, 725–726, 389 N.Y.S.2d 529; Sobie, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 828, at 286). Finally, we conclude with respect to the order in appeal No. 2 that the court properly dismissed the family offense petition inasmuch as the mother failed to meet her burden of establishing by a fair preponderance of the evidence that the father committed the family offense of harassment in the second degree ( see Family Ct. Act § 812[1]; § 832; Matter of Woodruff v. Rogers, 50 A.D.3d 1571, 857 N.Y.S.2d 832, lv. denied 10 N.Y.3d 717, 862 N.Y.S.2d 469, 892 N.E.2d 863; Matter of Deborah D. v. Kathy D., 26 A.D.3d 759, 807 N.Y.S.2d 889). “Contrary to the further contention of the mother, the court's assessment of the credibility of the witnesses is entitled to great weight, and the court was entitled to credit the testimony of the father over that of the mother” ( Matter of Kobel v. Holiday, 78 A.D.3d 1660, 910 N.Y.S.2d 752; see Matter of Danielle S. v. Larry R.S., 41 A.D.3d 1188, 838 N.Y.S.2d 740).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.