Matter of Hrostowski v. Micha

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 22, 2015 519332
________________________________

In the Matter of THOMAS E.
HROSTOWSKI,
Appellant,
v MEMORANDUM AND ORDER

HEATHER MICHA,
Respondent.
________________________________

Calendar Date: September 15, 2015

Before: Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

__________

Terrence R. Dugan, Endicott, for appellant.

Christopher Pogson, Binghamton, attorney for the child.

__________

Peters, P.J.

Appeal from an order of the Family Court of Broome County
(Pines, J.), entered October 9, 2013, which dismissed
petitioner'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 son (born in 2008).
In April 2010, they consented to an order providing for joint
legal custody of the child, with the mother having primary
physical custody and the father receiving parenting time on
alternate weekends and as otherwise agreed to by the parties.
Following the issuance of the order, the parties continued to
engage in a romantic relationship on an on-again-off-again basis
and, in March 2011, they began living together with the child.
Following their separation in August 2011, the parties filed a
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series of petitions seeking to modify and/or hold the other in
violation of the custody order. Insofar as is relevant here, the
father sought sole custody of the child premised on allegations
that the mother engaged in bizarre and inappropriate behavior,
often as a result of her excessive alcohol consumption.
Following a fact-finding hearing conducted over four separate
days between December 2012 and August 2013, Family Court
dismissed the father's modification petition, finding that the
agreed-upon custody arrangement remained in the child's best
interests.1 The father appeals.

A party seeking to modify an existing custody arrangement
must first demonstrate a change in circumstances since the entry
of the prior order (see Matter of Demers v McLear, 130 AD3d 1259,
1260 [2015]; Matter of Hayward v Campbell, 104 AD3d 1000, 1000
[2013]; Matter of Clark v Ingraham, 88 AD3d 1079, 1079 [2011]).
Initially, we note that the testimony concerning events that
allegedly occurred prior to the 2010 custody order is not
relevant to assessing whether this threshold showing has been met
(see Matter of Bond v Bond, 93 AD3d 1100, 1101 [2012]; Matter of
Bouwens v Bouwens, 86 AD3d 731, 732 [2011]; Matter of Fielding v
Fielding, 41 AD3d 929, 930 [2007]). Focusing on the relevant
proof, we find that the parties' disregard of the stipulated
custody arrangement, together with the evidence of the mother's
alcohol abuse and alcohol-related arrests following the issuance
of such order, was "sufficient to constitute a change in
circumstances requiring a review of the existing custody
arrangement in order to determine whether it continued to be in
the child's best interests" (Matter of Martin v Mills, 94 AD3d
1364, 1366 [2012]; see Matter of Chris X. v Jeanette Y., 124 AD3d
1013, 1014 [2015]; Matter of Lawrence v Kowatch, 119 AD3d 1004,
1005 [2014]; Matter of Kiernan v Kiernan, 114 AD3d 1045, 1046
[2014]; Matter of Fish v Fish, 100 AD3d 1049, 1050 [2012]; Matter
of Kilmartin v Kilmartin, 44 AD3d 1099, 1101 [2007]).

1
The other petitions were either withdrawn or dismissed by
Family Court after separate hearings, and they are not the
subject of this appeal. We note that, in resolving the father's
modification petition, the court took judicial notice of the
testimony offered in those proceedings.
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Factors relevant to determining whether a modification will
serve the child's best interests include "maintaining stability
in [the child's] life, the quality of the respective home
environments, the length of time the present custody arrangement
has been in place, each parent's past performance, relative
fitness and ability to guide and provide for [the child's]
well-being, and the willingness of each parent to foster a
relationship with the other parent" (Matter of Clouse v Clouse,
110 AD3d 1181, 1183 [2013], lv denied 22 NY3d 858 [2014]; see
Matter of Colona v Colona, 125 AD3d 1123, 1125 [2015]; Matter of
Chris X. v Jeanette Y., 124 AD3d at 1014). Although a stipulated
custody arrangement is entitled to less weight than an order
following a plenary hearing, it is still a factor to be
considered in the analysis (see Matter of Demers v McLear, 130
AD3d at 1260; Heather B. v Daniel B., 125 AD3d 1157, 1159
[2015]). We accord great deference to Family Court's factual
findings and credibility assessments and will not disturb its
custodial determination if supported by a sound and substantial
basis in the record (see Matter of Daniel TT. v Diana TT., 127
AD3d 1514, 1515 [2015]; Matter of Virginia C. v Donald C., 114
AD3d 1032, 1033 [2014]).

Here, the record reflects that both parents have at times
exhibited poor judgment and engaged in inappropriate behavior.
Testimony was presented that, on several occasions subsequent to
the 2010 order, the mother appeared at the father's residence
uninvited in an intoxicated state, with one such incident
culminating in her arrest for disorderly conduct. She was also
arrested for driving while intoxicated in October 2010 and
convicted of obstructing governmental administration, as a result
of which she was placed on probation supervision. The evidence
further established that the mother and father engaged in verbal
and physical disputes with one another, often as a result of
alcohol, and that both were the subject of indicated reports
based upon mutual acts of domestic violence in the presence of
the child. While the father maintained that he was essentially
blameless for the abuse and the problems in the parties'
relationship, Family Court rejected his testimony as "simply not
credible," while noting that the mother freely admitted her
shared culpability in the ongoing domestic violence and was
"refreshingly candid" as to all issues, including her "self-
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destructive behavior."

The record also confirms that, in the years following the
cessation of their tumultuous relationship, both parents have
grown and matured and have become similarly situated in terms of
the quality and stability of their lives. Both are self-employed
and have resumed living with their respective parents, who
provide a supportive environment and care for the child when the
parents are working. As of the final hearing date, the mother
had obtained a substance abuse evaluation, remained compliant
with the terms of her probation and was a candidate for early
release from supervision based on her good behavior. She had
also demonstrated a willingness to foster the child's
relationship with the father, to provide him with liberal access
to the child and to facilitate such custodial time by providing
transportation to and from visits. Faced with a difficult
decision, Family Court affixed blame on both parties for their
prior transgressions, found that each had made significant
progress in dealing with their respective issues and improving
their lives, and concluded that the child was benefitting under
the present arrangement. Considering all of the circumstances
and according deference to Family Court's credibility
determinations (see Matter of Lawrence v Kowatch, 119 AD3d at
1005-1006), we find a sound and substantial basis for its
determination that the father did not meet his burden of
demonstrating that a modification of the prior custody order is
necessary to ensure the child's best interests (see Matter of
Clouse v Clouse, 110 AD3d at 1184; Matter of Hayward v Campbell,
104 AD3d at 1001).

One final matter warrants discussion. The mother's
counsel, a privately retained attorney, failed to submit an
answering brief on this appeal. Numerous attempts by this Court
to ascertain when a brief would be forthcoming have gone
unanswered.2 We take this opportunity to note our disapproval of
counsel's conduct on this appeal and to remind the bar that "the

2
This Court advised the mother that her retained counsel
had failed to file a brief and requested that she contact the
Court, but this entreaty likewise went unanswered.
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failure to file a brief, or at least advise this [C]ourt of an
answering party's position on appeal, may be considered
tantamount to a concession that the relief sought on appeal
should be granted" (Matter of Faith AA., 139 AD2d 22, 26 [1988]).

Lahtinen, McCarthy and Lynch, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger
Clerk of the Court