Opinion
986 CAF 18–02058
12-20-2019
In the Matter of William KRIER, Petitioner–Respondent, v. Jeanne KRIER, Respondent–Appellant. Mary S. Hajdu, Esq., Attorney for the Child, Appellant.
MARY S. HAJDU, LAKEWOOD, ATTORNEY FOR THE CHILD, APPELLANT PRO SE. ELIZABETH CIAMBRONE, BUFFALO, FOR RESPONDENT–APPELLANT. BRIAN R. WELSH, PLLC, WILLIAMSVILLE (BRIAN R. WELSH OF COUNSEL), FOR PETITIONER–RESPONDENT.
MARY S. HAJDU, LAKEWOOD, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.
ELIZABETH CIAMBRONE, BUFFALO, FOR RESPONDENT–APPELLANT.
BRIAN R. WELSH, PLLC, WILLIAMSVILLE (BRIAN R. WELSH OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the tenth provision of the second ordering paragraph insofar as it relates to the suspension of maintenance payments, and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother and the Attorney for the Child (AFC) appeal from an order that, inter alia, modified a prior custody and visitation order by awarding sole custody of the subject child to petitioner father. At the hearing, Family Court heard the testimony of the mother, the father, the three adult siblings of the child, and two expert witnesses. The court also conducted a Lincoln hearing. The subject child had refused to have any contact with the father in the four years since the parties' divorce, and the parties offered conflicting lay and expert testimony whether the mother had caused the child's alienation from the father.
Contrary to the contention of the mother and the AFC, we conclude that the father established a sufficient "change in circumstances to warrant an inquiry into the best interests of the child" ( Matter of Poromon v. Evans , 176 A.D.3d 1642, 1643, 112 N.Y.S.3d 366 [4th Dept. 2019] ), based on both the expert testimony that the child was demonstrating elements of parental alienation (see Matter of Angela N. v. Guy O. , 144 A.D.3d 1343, 1345, 41 N.Y.S.3d 590 [3d Dept. 2016] ) and " ‘the continued deterioration of the parties' relationship’ " ( Lauzonis v. Lauzonis , 120 A.D.3d 922, 924, 992 N.Y.S.2d 586 [4th Dept. 2014] ; see Matter of Gaudette v. Gaudette , 262 A.D.2d 804, 804–805, 691 N.Y.S.2d 681 [3d Dept. 1999], lv denied 94 N.Y.2d 790, 700 N.Y.S.2d 421, 722 N.E.2d 501 [1999] ; see also Matter of Ingersoll v. Platt , 72 A.D.3d 1560, 1561, 899 N.Y.S.2d 517 [4th Dept. 2010] ). Furthermore, we reject the contention of the mother and the AFC that the determination to award sole custody to the father is not supported by the requisite "sound and substantial basis in the record" ( Matter of Russell v. Russell , 173 A.D.3d 1607, 1608, 105 N.Y.S.3d 626 [4th Dept. 2019] ). "The court's determination in a custody matter is entitled to great deference and will not be disturbed where ... it is based on a careful weighing of appropriate factors" ( Matter of Stanton v. Kelso , 148 A.D.3d 1809, 1810, 50 N.Y.S.3d 785 [4th Dept. 2017] [internal quotation marks omitted]; see generally Fox v. Fox , 177 A.D.2d 209, 210–211, 582 N.Y.S.2d 863 [4th Dept. 1992] ). Those factors include: (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the parents and the length of time the present custodial arrangement has continued; (2) the relative quality of each parent's home environment; (3) each parent's ability to provide for the child's emotional and intellectual development; (4) the parents' relative financial status and ability to provide for the child; (5) the child's wishes; and (6) the need of the child to live with siblings (see Fox , 177 A.D.2d at 210, 582 N.Y.S.2d 863 ).
Here, upon consideration of the testimony, the court properly weighed those factors and found that all weighed in favor of placement with the father except the child's wishes. Although the subject child was 15 years old at the time of the hearing, the court properly determined that his wishes were not entitled to great weight inasmuch as the child was so profoundly influenced by his mother "that he cannot perceive a difference between" the father's abandonment of the marriage and the father's abandonment of him and that it was in the child's best interests to reside with the father despite his wishes to the contrary (cf. Matter of Miosky v. Miosky , 33 A.D.3d 1163, 1167, 823 N.Y.S.2d 269 [3d Dept. 2006] ; see also Matter of Marino v. Marino , 90 A.D.3d 1694, 1695–1696, 935 N.Y.S.2d 818 [4th Dept. 2011] ). Contrary to the contention of the mother and the AFC, the court did not improperly rely on the presence of "parental alienation syndrome" (PAS) in making its custody determination. Indeed, the father's expert did not conclude that PAS, as a diagnosis, existed in this case and rather testified that the type of conduct in which the mother engaged resulted in the subject child becoming alienated from the father. Although PAS is not routinely accepted as a scientific theory by New York courts (see Matter of Montoya v. Davis , 156 A.D.3d 132, 135 n 5, 66 N.Y.S.3d 350 [3d Dept. 2017] ), this Court has repeatedly recognized the effects of alienating behaviors by a parent on children in custody and visitation determinations (see Russell , 173 A.D.3d at 1608–1609, 105 N.Y.S.3d 626 ; Matter of Nwawka v. Yamutuale , 107 A.D.3d 1456, 1457, 967 N.Y.S.2d 548 [4th Dept. 2013], lv denied 21 N.Y.3d 865, 2013 WL 4792067 [2013] ; Matter of Carter v. Work , 100 A.D.3d 1557, 1557–1558, 954 N.Y.S.2d 384 [4th Dept. 2012] ). We thus conclude that there is a sound and substantial basis for the determination that an award of sole custody to the father was in the child's best interests, and we therefore decline to disturb that determination (see generally Russell , 173 A.D.3d at 1609, 105 N.Y.S.3d 626 ; Matter of Thayer v. Ennis , 292 A.D.2d 824, 825, 739 N.Y.S.2d 321 [4th Dept. 2002] ).
Contrary to the further contention of the mother and the AFC, the court did not err in including a directive that the mother obtain counseling as a component of the order on appeal inasmuch as the court did not "order such counseling as a prerequisite to custody or visitation" ( Matter of Avdic v. Avdic , 125 A.D.3d 1534, 1535, 4 N.Y.S.3d 792 [4th Dept. 2015] ).
However, we agree with the mother and the AFC that the court exceeded its jurisdiction in suspending maintenance payments to the mother inasmuch as the parties' separation agreement setting forth that obligation is an independent contract (see Makarchuk v. Makarchuk , 59 A.D.3d 1094, 1094, 874 N.Y.S.2d 649 [4th Dept. 2009] ). Family Court is a court of limited jurisdiction and cannot exercise powers beyond those granted to it by statute (see Matter of Johna M.S. v. Russell E.S. , 10 N.Y.3d 364, 366, 859 N.Y.S.2d 594, 889 N.E.2d 471 [2008] ; Matter of Howard v. Janowski , 226 A.D.2d 1087, 1087, 641 N.Y.S.2d 940 [4th Dept. 1996] ; see also Kleila v. Kleila , 50 N.Y.2d 277, 282, 428 N.Y.S.2d 896, 406 N.E.2d 753 [1980] ), and "[i]t generally has no subject matter jurisdiction to reform, set aside or modify the terms of a valid separation agreement" ( Johna M.S. , 10 N.Y.3d at 366, 859 N.Y.S.2d 594, 889 N.E.2d 471 ). We therefore modify the order by vacating the tenth provision of the second ordering paragraph insofar as it relates to the suspension of maintenance payments, and we remit the matter to Family Court for a determination of the amount of any maintenance arrears.
The contention of the mother and the AFC that the court erred in prohibiting contact between the subject child and his adult siblings is moot inasmuch as that provision of the order expired by its own terms (see generally Matter of Mickle v. Mickle , 143 A.D.3d 1289, 1290, 38 N.Y.S.3d 504 [4th Dept. 2016] ; Matter of Whitney v. Judge , 138 A.D.3d 1381, 1382, 30 N.Y.S.3d 412 [4th Dept. 2016], lv denied 27 N.Y.3d 911, 2016 WL 3582574 [2016] ).