Opinion
252 CAF 16–00862
03-16-2018
In the Matter of Peter J. UNCZUR, Jr., Petitioner–Respondent v. Debra A. WELCH, Respondent–Petitioner–Respondent.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR PETITIONER–RESPONDENT–APPELLANT. LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT–PETITIONER–RESPONDENT. AVERY S. OLSON, JAMESTOWN, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR PETITIONER–RESPONDENT–APPELLANT.
LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT–PETITIONER–RESPONDENT.
AVERY S. OLSON, JAMESTOWN, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Petitioner-respondent father appeals from an order that, inter alia, modified the parties' existing custodial arrangement by granting respondent-petitioner mother sole custody of the parties' child, with visitation to the father. The father contends that Family Court abused its discretion in granting the Attorney for the Child's motion to change venue from Madison County to Chautauqua County inasmuch as the court failed to consider the hardship on the father. The father, however, failed to include the motion papers and any transcript of proceedings on the motion in the record on appeal. Inasmuch as it is the father's responsibility, as the appellant, to assemble an adequate record on appeal, and he has failed to do so with respect to this issue, we cannot review the propriety of the court's decision to change venue (see Matter ofChristopher D.S. [Richard E.S.], 136 A.D.3d 1285, 1286–1287, 25 N.Y.S.3d 455 [4th Dept. 2016] ; Matter ofLopez v. Lugo, 115 A.D.3d 1237, 1237, 982 N.Y.S.2d 640 [4th Dept. 2014] ).
Contrary to the father's further contention, the court properly determined that he failed to establish by clear and convincing evidence that the mother willfully violated the terms of the custody order with respect to his visitation (see Matter ofPalazzolo v. Giresi–Palazzolo, 138 A.D.3d 866, 867, 28 N.Y.S.3d 348 [2d Dept. 2016] ). The record establishes that the purported violations were the result of the child's refusal to comply with the order (see Matter ofJames XX. v. Tracey YY., 146 A.D.3d 1036, 1038, 45 N.Y.S.3d 621 [3d Dept. 2017] ), or were based on misunderstandings between the parties.
We conclude that there is a sound and substantial basis in the record for the court's award of sole custody to the mother (see Matter ofTerramiggi v. Tarolli, 151 A.D.3d 1670, 1671, 56 N.Y.S.3d 721 [4th Dept. 2017] ). Contrary to the father's contention, the record established the requisite change in circumstances warranting an inquiry into whether a change in custody is in the best interests of the child based on, inter alia, the inability of the parties to communicate in a manner conducive to sharing joint custody (see Werner v. Kenney, 142 A.D.3d 1351, 1351–1352, 38 N.Y.S.3d 314 [4th Dept. 2016] ). Moreover, the court properly concluded that awarding sole custody of the child to the mother, with whom the child had principally resided, was in the best interests of the child (see generally Matter ofGorton v. Inman, 147 A.D.3d 1537, 1537–1539, 47 N.Y.S.3d 569 [4th Dept. 2017] ; Williams v. Williams, 100 A.D.3d 1347, 1348, 953 N.Y.S.2d 421 [4th Dept. 2012] ). The hearing testimony established that the mother provided a more stable environment for the child and was better able to nurture the child. "Even assuming, arguendo, that the court did not set forth sufficient findings with respect to the best interests of the child, we conclude that reversal is not thereby warranted inasmuch as the record is adequate for us to make a best interests determination, and it supports the result reached by the court" ( Matter ofMontalbano v. Babcock, 155 A.D.3d 1636, 1638, 65 N.Y.S.3d 396 [4th Dept. 2017] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.