SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

203 

CAF 15-01632 

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ. 

 

IN THE MATTER OF MEREDITH GORTON, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

JEREMY V. INMAN, RESPONDENT-APPELLANT.

 

PAUL A. NORTON, CLINTON, FOR RESPONDENT-APPELLANT. 

LEVITT & GORDON, NEW HARTFORD (DEAN L. GORDON OF COUNSEL), FOR

PETITIONER-RESPONDENT. 

JULIE GIRUZZI-MOSCA, ATTORNEY FOR THE CHILD, UTICA. 

 

Appeal from an order of the Family Court, Oneida County (Joan E.

Shkane, J.), entered June 24, 2015 in a proceeding pursuant to Family

Court Act article 6. The order, inter alia, granted sole custody of

the subject child to petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by vacating that part of the third

ordering paragraph setting an alternate weekend visitation schedule

and reinstating the visitation schedule as set forth in the third

ordering paragraph of the amended order entered May 27, 2014, and

vacating the eighth ordering paragraph, and as modified the order is

affirmed without costs. 

Memorandum: Petitioner mother filed a petition alleging that

respondent father violated an amended order entered on consent on May

27, 2014, and seeking a modification of that amended order from joint

custody to sole custody. The amended order, inter alia, granted the

parties joint custody of their child, physical placement with the

mother, and visitation to the father, including weekly visits on

Thursday evenings, alternate weekends, and various holidays. The

amended order specifically provided that the commencement of the

weekend visits would alternate between Friday evening and Saturday

morning. The amended order further provided that, for the year 2014,

the child would be with the mother from 2:00 p.m. on Thanksgiving Day

through the weekend, and that holiday visits took precedence over the

visitation schedule. The mother’s petition alleged that the father

failed to exercise several Friday night visits from June through

October, 2014, that he refused to return the child at 2:00 p.m. on

Thanksgiving Day and instead kept him until 6:00 p.m. on the following

Sunday, and that he threatened to disparage the mother to their child. 
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CAF 15-01632 

The mother also alleged that she and the father were unable to

communicate regarding the best interests of the child and therefore

sought modification of the amended order. The mother sought an award

of sole custody and attorney’s fees; however, she did not seek a

reduced visitation schedule. Following a hearing, Family Court

credited the mother’s testimony and determined that the father

wilfully violated the amended order and that the mother established a

change of circumstances warranting a determination that the best

interests of the child would be served by an award of sole custody to

the mother. The court also reduced the father’s visitation by

eliminating the Friday night visits and Thursday evening visits and

conditioned the father’s filing of any future modification petition on

his completion of anger management and parenting classes.

We conclude that the father’s contention that the court erred in

imposing a temporary order of supervised visitation pending the

decision “is rendered moot by the court’s issuance of a final order of

visitation” (Matter of Kirkpatrick v Kirkpatrick, 137 AD3d 1695,

1696). We agree with the father, however, that the court erred in

conditioning his right to petition the court upon the completion of

anger management and parenting classes, and we modify the order by

vacating that ordering paragraph (see Matter of Ordona v Cothern, 126

AD3d 1544, 1546). We also agree with the father that the record does

not support the court’s determination that it is in the best interests

of the child to eliminate the Thursday evening and Friday night

visitation periods (see Matter of Roody v Charles, 283 AD2d 945, 946). 

There was no testimony that there were any problems regarding the

Thursday visits. The mother admitted that she and the father disputed

which weekend visits were to commence on Friday and which were to

commence on Saturday, but it appears from the record that the parties

had resolved that issue prior to the hearing. Thus, we conclude that

the court abused its discretion in eliminating those periods of

visitation (cf. Matter of VanDusen v Riggs, 77 AD3d 1355, 1356). We

therefore further modify the order by reinstating the schedule set

forth in the third ordering paragraph of the amended order entered on

May 27, 2014. 

We reject the father’s contention that the court erred in

determining that the mother established a change of circumstances

warranting a review of the amended order with respect to custody, and

further erred in determining that it was in the best interests of the

child to award the mother sole custody (see Matter of Moore v Moore,

78 AD3d 1630, 1631, lv denied 16 NY3d 704). The court credited the

mother’s testimony that the father would yell and swear at her on the

telephone and that she therefore communicated with him only through

text messages, and the text messages admitted in evidence support the

court’s determination that, in light of the acrimonious relationship

between the parties, the existing joint custody arrangement was

inappropriate. The court’s determination is entitled to great

deference (see Matter of Daila W. [Danielle W.–Daniel P.], 133 AD3d

1353, 1354), and we conclude that it is supported by a sound and

substantial basis in the record (see Ingersoll v Platt, 72 AD3d 1560,

1560-1561). 
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CAF 15-01632 

Finally, the father contends that the court erred in awarding the

mother attorney’s fees. Although the order directs the mother’s

attorney to submit an application for attorney’s fees by a specific

date, there is nothing in the record establishing that the court

awarded attorney’s fees. Because the father submitted the appeal on

an incomplete record, he must suffer the consequences of our inability

to review that contention (see Matter of Christopher D.S. [Richard

E.S.], 136 AD3d 1285, 1286-1287; Matter of Santoshia L., 202 AD2d

1027, 1028). 

Entered: February 10, 2017 Frances E. Cafarell

Clerk of the Court