Opinion
1057 CAF 17–00125
10-05-2018
In the Matter of Bridgette WHITE, Petitioner–Appellant, v. Mark STONE, Respondent–Respondent.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR PETITIONER–APPELLANT. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT–RESPONDENT. SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILD.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR PETITIONER–APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR RESPONDENT–RESPONDENT.
SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner mother appeals from an order that, among other things, denied her petition seeking modification of a judgment of divorce, which incorporated but did not merge the parties' separation agreement providing for joint legal custody of the subject child with primary physical custody to respondent father and visitation to the mother. "Where an order of custody and visitation is entered on stipulation, a court cannot modify that order unless a sufficient change in circumstances—since the time of the stipulation—has been established, and then only where a modification would be in the best interests of the children" ( Matter of Hight v. Hight, 19 A.D.3d 1159, 1160, 796 N.Y.S.2d 494 [4th Dept. 2005] [internal quotation marks omitted]; see Matter of Maracle v. Deschamps, 124 A.D.3d 1392, 1392, 1 N.Y.S.3d 694 [4th Dept. 2015] ). Although we agree with the mother that Family Court erred in determining that she failed to establish that there was a sufficient change in circumstances after the time of the stipulation (see Matter of Frisbie v. Stone, 118 A.D.3d 1471, 1472, 988 N.Y.S.2d 803 [4th Dept. 2014] ; Matter of Knight v. Knight, 92 A.D.3d 1090, 1092, 940 N.Y.S.2d 325 [3d Dept. 2012] ), we conclude that the court's further determination that it was in the child's best interests to remain in the primary physical custody of the father is supported by a sound and substantial basis in the record (see Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408–411, 985 N.Y.S.2d 28 [1st Dept. 2014] ; Matter of Schick v. Schick, 72 A.D.3d 1100, 1100–1101, 900 N.Y.S.2d 337 [2d Dept. 2010] ; Matter of Charpentier v. Rossman, 264 A.D.2d 393, 393, 694 N.Y.S.2d 109 [2d Dept. 1999] ).
We reject the mother's contention that the court abused its discretion in refusing to find the father in civil contempt of court for disobeying prior court orders inasmuch as the mother failed to establish by clear and convincing evidence the elements necessary to support such a finding (see generally El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015] ).
Even assuming, arguendo, that the mother preserved for our review her further contention that the court erred in refusing to recuse itself, we conclude that her contention lacks merit. "[T]he record establishes that the court treated the parties fairly, made appropriate evidentiary rulings, and did not have a predetermined outcome of the case in mind during the proceedings" ( Matter of Biancoviso v. Barona, 150 A.D.3d 990, 991, 54 N.Y.S.3d 642 [2d Dept. 2017] ; see Matter of Roseman v. Sierant, 142 A.D.3d 1323, 1325, 38 N.Y.S.3d 295 [4th Dept. 2016] ).
Finally, under the circumstances of this case, we reject the mother's contention that the court abused its discretion in conducting an in camera interview with the child before commencement of the fact-finding hearing (see Matter of Christine TT. v. Dino UU., 143 A.D.3d 1065, 1068, 39 N.Y.S.3d 306 [3d Dept. 2016] ; see generally Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969] ).