Opinion
2011-11-15
In the Matter of Jerome O'LEARY, petitioner-respondent, v. Deborah FRANGOMIHALOS, respondent-respondent,Heidi Mook, appellant.
Karl E. Bonheim, Riverhead, N.Y., for appellant. Thomas W. McNally, Huntington Station, N.Y., for petitioner-respondent.
Karl E. Bonheim, Riverhead, N.Y., for appellant. Thomas W. McNally, Huntington Station, N.Y., for petitioner-respondent. Jeanne R. Burton, Ronkonkoma, N.Y., for respondent-respondent.Paraskevi Zarkadas, Centereach, N.Y., attorney for the children.ANITA R. FLORIO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In related child custody proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Tarantino, Jr., J.), dated July 20, 2010, as, after a hearing, granted the father's petition to modify a custody order dated January 12, 2007, so as to award him sole custody of the parties' children.
ORDERED that the order dated July 20, 2010, is affirmed insofar as appealed from, without costs or disbursements.
Although the mother failed to appear in person at the hearing, her counsel appeared on her behalf and participated in the hearing. Accordingly, the order was not entered on the mother's default, and this appeal is properly before us ( see Matter of Newman v. Newman, 72 A.D.3d 973, 899 N.Y.S.2d 621; Matter of Pollard v. Pollard, 63 A.D.3d 1628, 881 N.Y.S.2d 564; Matter of Hopkins v. Gelia, 56 A.D.3d 1286, 869 N.Y.S.2d 296; cf. Matter of Willie Ray B. [Deanna W.B.], 77 A.D.3d 657, 657–658, 908 N.Y.S.2d 371).
“The grant or denial of a motion for ‘an adjournment for any purpose is a matter resting within the sound discretion of the trial court’ ” ( Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646, quoting Matter of Anthony M., 63 N.Y.2d 270, 283, 481 N.Y.S.2d 675, 471 N.E.2d 447; see Matter of Braswell v. Braswell, 80 A.D.3d 827, 829, 914 N.Y.S.2d 749; Matter of Zindle v. Hernandez, 26 A.D.3d 338, 809 N.Y.S.2d 524). Here, the Family Court set the hearing date more than 60 days in advance and issued a trial and scheduling order setting a date certain. Given the mother's failure to offer any proof that she was unable to attend because she was in an inpatient drug treatment program, and particularly in light of her history of failing to provide such proof, the court providently exercised its discretion in denying her attorney's request for an adjournment ( compare Matter of Braswell v. Braswell, 80 A.D.3d at 829, 914 N.Y.S.2d 749; Matter of Nicholas S., 46 A.D.3d 830, 831, 848 N.Y.S.2d 311; Matter of Zindle v. Hernandez, 26 A.D.3d at 338, 809 N.Y.S.2d 524). Moreover, the court offered the mother the opportunity to testify telephonically on the second day of the hearing if she provided proof that she was in an inpatient treatment program, but she failed to avail herself of the court's offer ( compare Matter of Robert C. v. Katherine D., 56 A.D.3d 297, 867 N.Y.S.2d 404). Accordingly, the court providently exercised its discretion in holding the hearing in her absence ( see Matter of Steven B., 6 N.Y.3d at 889, 817 N.Y.S.2d 599, 850 N.E.2d 646; Matter of Braswell v. Braswell, 80 A.D.3d at 829, 914 N.Y.S.2d 749; Matter of Nicholas S., 46 A.D.3d at 831, 848 N.Y.S.2d 311; Matter of Zindle v. Hernandez, 26 A.D.3d at 338, 809 N.Y.S.2d 524).
The mother's remaining contention is unpreserved for appellate review ( see Matter of Timosa v. Chase, 21 A.D.3d 1115, 1116, 803 N.Y.S.2d 575; Matter of Diaz v. Santiago, 8 A.D.3d 562, 563, 779 N.Y.S.2d 229) and, in any event, is without merit ( see Matter of Lowe v. O'Brien, 81 A.D.3d 1093, 1094, 917 N.Y.S.2d 363; Matter of Backus v. Clupper, 79 A.D.3d 1179, 1181, 913 N.Y.S.2d 359).