Opinion
1501 CAF 16–02241
03-23-2018
In the Matter of Jeffrey KELLEY, Petitioner–Appellant, v. Ashlie FIFIELD, Respondent–Respondent.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR PETITIONER–APPELLANT. VOLUNTEER LAWYERS PROJECT OF ONONDAGA COUNTY, INC., SYRACUSE (MARY C. JOHN OF COUNSEL), FOR RESPONDENT–RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR PETITIONER–APPELLANT.
VOLUNTEER LAWYERS PROJECT OF ONONDAGA COUNTY, INC., SYRACUSE (MARY C. JOHN OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: Here, the father sought to modify the prior order, which provided that he was entitled to supervised visitation with the subject child "under such circumstances and conditions as the parties can mutually agree." In support of his petition, the father alleged that, since the entry of the prior order, there had been a change of circumstances inasmuch as respondent mother had not allowed the father to have any contact with the child, it had been three years since the last such contact, the mother had alienated the child from the father, and the father had been incarcerated. The father thus requested "correspondence with the child" and "supervised visitation to reconnect with the child." The court determined that it could not grant supervised visitation to which the father was already entitled and, in dismissing the petition without prejudice to file an enforcement petition, the court apparently took the view that modification of the prior order was not available under the circumstances herein. That was error.
Although "[a] court cannot delegate its authority to determine visitation to either a parent or a child" ( Matter of Merkle v. Henry, 133 A.D.3d 1266, 1268, 20 N.Y.S.3d 774 [4th Dept. 2015] [internal quotation marks omitted] ), it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances (see Matter of Pierce v. Pierce, 151 A.D.3d 1610, 1611, 56 N.Y.S.3d 703 [4th Dept. 2017], lv. denied 30 N.Y.3d 902, 2017 WL 4654065 [2017] ; Matter of Thomas v. Small, 142 A.D.3d 1345, 1345–1346, 38 N.Y.S.3d 461 [4th Dept. 2016] ; Matter of Alleyne v. Cochran, 119 A.D.3d 1100, 1102, 990 N.Y.S.2d 289 [3d Dept. 2014] ; cf. Matter of Michael B. v. Dolores C., 113 A.D.3d 517, 518, 979 N.Y.S.2d 53 [1st Dept. 2014] ; Matter of Nicolette I. [Leslie I.], 110 A.D.3d 1250, 1255, 974 N.Y.S.2d 144 [3d Dept. 2013] ). Where, as here, a prior order provides for visitation as the parties may mutually agree, a party who is unable to obtain visitation pursuant to that order "may file a petition seeking to enforce or modify the order" ( Pierce, 151 A.D.3d at 1611, 56 N.Y.S.3d 703 ; see Thomas, 142 A.D.3d at 1346, 38 N.Y.S.3d 855 ; Matter of Moore v. Kazacos, 89 A.D.3d 1546, 1547, 932 N.Y.S.2d 788 [4th Dept. 2011], lv denied 18 N.Y.3d 806, 2012 WL 446225 [2012] ).
We agree with the father that the court erred in dismissing the modification petition without a hearing inasmuch as the father made "a sufficient evidentiary showing of a change in circumstances to require a hearing" ( Matter of Gelling v. McNabb, 126 A.D.3d 1487, 1487, 6 N.Y.S.3d 887 [4th Dept. 2015] [internal quotation marks omitted] ). Contrary to the mother's contention, upon giving the petition a liberal construction, accepting the facts alleged therein as true, and according the father the benefit of every favorable inference (see Matter of Machado v. Tanoury, 142 A.D.3d 1322, 1323, 38 N.Y.S.3d 356 [4th Dept. 2016] ; see generally Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), we conclude that the father adequately alleged a change of circumstances insofar as the visitation arrangement based upon mutual agreement was no longer tenable given that the mother purportedly denied the father any contact with the child (see Gelling, 126 A.D.3d at 1487–1488, 6 N.Y.S.3d 887 ). In addition, we note that, although the father is now incarcerated, there is a rebuttable presumption that visitation is in the child's best interests (see Matter of Fewell v. Ratzel, 121 A.D.3d 1542, 1542, 993 N.Y.S.2d 608 [4th Dept. 2014] ; see generally Matter of Brown v. Divelbliss, 105 A.D.3d 1369, 1369–1370, 963 N.Y.S.2d 791 [4th Dept. 2013] ). We therefore reverse the order, reinstate the petition, and remit the matter to Family Court for a hearing thereon.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Onondaga County, for further proceedings. In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order in which Family Court sua sponte dismissed his petition seeking modification of a prior custody and visitation order. As a preliminary matter, inasmuch as the order did not determine a motion made on notice, it is not appealable as of right (see Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003] ; Matter of Walker v. Bowman, 70 A.D.3d 1323, 1323, 893 N.Y.S.2d 775 [4th Dept. 2010] ). Although the father did not seek leave to appeal, under the circumstances of this case we treat the notice of appeal as an application for leave to appeal and grant the application in the interest of justice (see Matter of Majuk v. Carbone, 129 A.D.3d 1485, 1486, 12 N.Y.S.3d 410 [4th Dept. 2015] ; Walker, 70 A.D.3d at 1323–1324, 893 N.Y.S.2d 775 ; see generally CPLR 5701[c] ).