Opinion
05-05-2017
In the Matter of Lauralee PFALZER, Petitioner–Appellant, v. John E. PFALZER, Jr., Respondent–Respondent.
Bridget L. Field, Rochester, for Petitioner–Appellant. Pope Law Firm, PLLC, Williamsville (Paul T. Buerger, Jr., of Counsel), for Respondent–Respondent. Jeffrey D. Oshlag, Attorney for the Children, Batavia.
Bridget L. Field, Rochester, for Petitioner–Appellant.
Pope Law Firm, PLLC, Williamsville (Paul T. Buerger, Jr., of Counsel), for Respondent–Respondent.
Jeffrey D. Oshlag, Attorney for the Children, Batavia.
PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:
Petitioner mother appeals from an order that dismissed her petition seeking modification of a judgment of divorce that awarded joint custody of the subject children to the parties and primary residential placement to respondent father. The mother's contention that Family Court erred in failing to conduct a Lincoln hearing is not preserved for our review (see Bielli v. Bielli, 60 A.D.3d 1487, 1487, 876 N.Y.S.2d 799, lv. dismissed 12 N.Y.3d 896, 884 N.Y.S.2d 678, 912 N.E.2d 1057 ; Matter of Nielsen v. Nielsen, 225 A.D.2d 1050, 1050, 639 N.Y.S.2d 220, lv. denied 88 N.Y.2d 805, 646 N.Y.S.2d 985, 670 N.E.2d 226 ). In any event, the mother's contention is without merit inasmuch as "[a]n in camera interview is not warranted where, as here, a court has before it sufficient information to determine the wishes of the children" (Bielli, 60 A.D.3d at 1487, 876 N.Y.S.2d 799 ; see Matter of Gallo v. Gallo, 138 A.D.3d 1189, 1191, 30 N.Y.S.3d 355 ). We reject the mother's contention that she was deprived of her right to effective assistance of counsel based on her attorney's failure to request a Lincoln hearing. As noted, "there is no indication that [he] would have succeeded in obtaining a Lincoln hearing" even if he had requested one (Matter of Venus v. Brennan, 103 A.D.3d 1115, 1117, 958 N.Y.S.2d 821 ). Furthermore, the mother's attorney could have believed that a Lincoln hearing would produce harmful evidence against the mother, and we therefore conclude that the mother failed to "demonstrate the absence of strategic or other legitimate explanations for" her attorney's alleged shortcoming in failing to request a Lincoln hearing (Matter of Brown v. Gandy, 125 A.D.3d 1389, 1390, 3 N.Y.S.3d 486 [internal quotation marks omitted] ). Contrary to the mother's further contention, " ‘the failure to call particular witnesses does not necessarily constitute ineffective assistance of counsel-particularly where the record fails to reflect that the desired testimony would have been favorable’ " (Matter of Bennett v. Abbey, 141 A.D.3d 882, 884, 34 N.Y.S.3d 762 ). In our view, the mother's contention is "impermissibly based on speculation, i.e., that favorable evidence could and should have been offered on [her] behalf" (Matter of Devonte M.T. [Leroy T.], 79 A.D.3d 1818, 1819, 913 N.Y.S.2d 457 ; see Matter of Coleman v. Millington, 140 A.D.3d 1245, 1248, 32 N.Y.S.3d 707 ).
Lastly, we reject the mother's contention that the court erred in dismissing her petition without conducting an inquiry into the best interests of the children. We conclude that "there is a sound and substantial basis in the record for Family Court's determination that the mother failed to make the requisite evidentiary showing of a change in circumstances to warrant an inquiry into whether the best interests of the child[ren] would be served by modifying the existing custody arrangement" (Matter of Thompson v. Thompson, 124 A.D.3d 1354, 1354, 1 N.Y.S.3d 655 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.