State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 8, 2015 517648
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In the Matter of SHAUN W.
DORNBURGH,
Appellant,
v MEMORANDUM AND ORDER
JEAN M. YEARRY,
Respondent.
(And Six Other Related Proceedings.)
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Calendar Date: November 13, 2014
Before: Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.
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Rosemarie Richards, Gilbertsville, for appellant.
Joseph Nalli, Fort Plain, for respondent.
Paul G.J. Madison, Stamford, attorney for the child.
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Egan Jr., J.
Appeal from an order of the Family Court of Otsego County
(Burns, J.), entered September 9, 2013, which, among other
things, granted respondent's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a daughter (born in
2008). Pursuant to an order entered on consent in September
2010, the parties were awarded joint legal and shared residential
custody of the child. Thereafter, in April 2012, the parties
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agreed to a "corrected" order of custody and visitation, which
made certain adjustments to each party's parenting time with the
child. Notwithstanding these adjustments, the mother and the
father continued to share physical custody of the child – on an
essentially equal basis – each week, subject to certain
additional periods of parenting time awarded to the mother.
Beginning in November 2012, the parties filed a series of
petitions seeking to modify and/or hold each other in violation
of the corrected order of custody. In addition, the mother filed
a habeas corpus petition, and the attorney for the child – citing
the mother's unresolved mental health and alcohol dependency
issues – filed a modification petition on the child's behalf
seeking to have the mother's parenting time curtailed and
supervised. A combined fact-finding hearing ensued, at the
conclusion of which Family Court, among other things, found the
father to twice be in violation of the prior order of custody and
awarded the mother sole legal and physical custody of the child.
This appeal by the father ensued.
During the course of the fact-finding hearing, the father
admitted that he refused to return the child to the mother in
November 2012 and, further, that he denied the mother's requests
for additional Saturday visitations as outlined in the prior
custody order. Inasmuch as the father's own testimony
establishes that he failed to comply with the relevant provisions
of the prior custody order (cf. Matter of Paul A. v Shaundell
LL., 117 AD3d 1346, 1348 [2014], lv dismissed and denied 24 NY3d
937 [2014]; Matter of Yeager v Yeager, 110 AD3d 1207, 1210
[2013]), we discern no basis upon which to disturb Family Court's
finding that the father was in willful violation thereof.
Accordingly, Family Court properly granted the mother's violation
petitions.
We reach a contrary conclusion, however, with respect to
Family Court's resolution of the parties' competing modification
petitions. "A parent seeking to modify an existing custody order
bears the burden of demonstrating a sufficient change in
circumstances since the entry of the prior order to warrant
modification thereof in the child[]'s best interests" (Matter of
Paul A. v Shaundell LL., 117 AD3d at 1348 [internal quotation
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marks and citations omitted]; accord Matter of Clark v Hart, 121
AD3d 1366, 1367 [2014]). Although the requisite change in
circumstances may be found to exist where "the parties'
relationship has deteriorated to a point where there is no
meaningful communication or cooperation for the sake of the
child" (Matter of Paul A. v Shaundell LL., 117 AD3d at 1348; see
Matter of DiMele v Hosie, 118 AD3d 1176, 1177 [2014]; Matter of
Sonley v Sonley, 115 AD3d 1071, 1072 [2014]), the record before
us falls short of establishing that the mother and father's
relationship has become so acrimonious as to preclude an award of
joint custody.
To be sure, the father refused to return the child to the
mother after the mother was released from an inpatient
psychiatric facility in November 2012. The father testified,
however, that he made that decision after consulting with both
his attorney and the attorney for the child (cf. Matter of Nelson
v Perea, 118 AD3d 1057, 1059 [2014]). Although the father also
arbitrarily imposed a two-week notice requirement when
entertaining the mother's requests for additional periods of
visitation (for which he properly was admonished) and the parties
often squabbled over transportation issues, the record as a whole
simply fails to reflect that the previously agreed-upon joint
custody arrangement no longer is feasible. Indeed, the father
testified that he and the mother had amicably discussed and
resolved issues relative to the child's medical appointments,
vacation schedule and her anticipated enrollment in school, and
nothing in the mother's testimony suggests that the parties'
relationship has deteriorated to the point where they are unable
to maintain even "a modicum of communication and cooperation" for
the sake of their child (Matter of Blanchard v Blanchard, 304
AD2d 1048, 1049 [2003]; accord Ehrenreich v Lynk, 74 AD3d 1387,
1390 [2010]; compare Matter of Paul A. v Shaundell LL., 117 AD3d
at 1348; Matter of Greene v Robarge, 104 AD3d 1073, 1075 [2013];
Matter of Spiewak v Ackerman, 88 AD3d 1191, 1192 [2011]; Matter
of Ferguson v Whible, 55 AD3d 988, 990-991 [2008]).
Further, we note that the father's stated basis for seeking
sole custody stemmed not from an expressed or demonstrated
inability to get along with the mother but, rather, from his
concerns regarding the mother's stability in light of her
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documented – and undisputed – mental health and alcohol
dependency issues. Similarly, although the mother – both in the
context of her modification petition and during the course of her
testimony at the hearing – requested that Family Court alter the
physical custody arrangement, she did not ask that Family Court
award her sole custody of the child (see Matter of Lynch v
Tambascio, 1 AD3d 816, 817 [2003]). Under these circumstances,
and inasmuch as the parties otherwise failed to demonstrate a
sufficient change in circumstances to warrant modification of the
prior custody order, Family Court erred in awarding sole legal
and physical custody to the mother.1 Although we are –
consistent with the child's best interests – reinstating the
award of joint legal custody (see Ehrenreich v Lynk, 74 AD3d at
1389-1390; Matter of Blanchard v Blanchard, 304 AD2d at 1149;
Matter of Darrow v Burlingame, 298 AD2d 651, 652 [2002]), in view
of the length of time that has elapsed since entry of the
underlying order and the relative lack of record evidence as to,
among other things, the parties' respective employment, financial
and living situations, we deem it prudent to remit this matter to
Family Court for the fashioning of an appropriate physical
custody/visitation arrangement. The parties' remaining
contentions, to the extent not specifically addressed, have been
examined and found to be lacking in merit.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.
1
While by no means determinative, the attorney for the
child argues on appeal that Family Court's decision to terminate
joint custody lacks a sound and substantial basis in the record.
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ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as awarded sole legal and
physical custody to respondent; the parties are awarded joint
legal custody and matter remitted to the Family Court of Otsego
County for further proceedings not inconsistent with this Court's
decision; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court