SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

201 

CAF 14-01538 

PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ. 

 

IN THE MATTER OF RICHARD C. KIRKPATRICK, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

JESSICA LYNN KIRKPATRICK, RESPONDENT-APPELLANT. 

----------------------------------------------- 

IN THE MATTER OF JESSICA LYNN KIRKPATRICK, 

PETITIONER-APPELLANT,

V

 

RICHARD C. KIRKPATRICK, RESPONDENT-RESPONDENT. 

 

DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT AND PETITIONERAPPELLANT.

LOVALLO & WILLIAMS, BUFFALO (TIMOTHY R. LOVALLO OF COUNSEL), FOR

PETITIONER-RESPONDENT AND RESPONDENT-RESPONDENT.

MICHELE A. BROWN, ATTORNEY FOR THE CHILD, BUFFALO. 

 

Appeal from an order of the Family Court, Erie County (Sharon M.

LoVallo, J.), entered July 22, 2014 in proceedings pursuant to Family

Court Act article 6. The order, among other things, dismissed the

petition of Jessica Lynn Kirkpatrick and granted in part the petition

of Richard C. Kirkpatrick to modify a prior court order. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In these proceedings under Family Court Act article

6, respondent-petitioner mother appeals from an order modifying the

existing visitation arrangement by directing that she have supervised

visitation with the parties’ child and dismissing her petition for

petitioner-respondent father’s violation of a prior order. The

mother’s contention that Family Court erred in issuing a temporary

order suspending visitation pending trial is rendered moot by the

court’s issuance of a final order of visitation (see generally Matter

of Viscuso v Viscuso, 129 AD3d 1679, 1682; Matter of Jones v Tucker,

125 AD3d 1273, 1273). 

Contrary to the mother’s further contention, the court did not

err in admitting testimony concerning the child’s out-of-court
-2- 201 

CAF 14-01538 

statements under the excited utterance exception to the hearsay rule

(see People v Miller, 115 AD3d 1302, 1303-1304, lv denied 23 NY3d

1040; see generally People v Caviness, 38 NY2d 227, 230-232). In any

event, any error in admitting the statements is harmless, inasmuch as

there is “a sound and substantial basis in the record for . . . Family

Court’s determination, without consideration of the statements, that

it was not in the [child’s] best interests to have unsupervised

contact with [her] mother” (Matter of Lane v Lane, 68 AD3d 995, 998). 

Here, the father established that the relationship between the child

and the mother had deteriorated significantly since the last order

allowing the mother unsupervised visitation, to the point where the

child no longer wanted to have visitation with the mother. 

Furthermore, even assuming, arguendo, that the court erred in

admitting the mother’s medical records, we note that the court did not

rely on the records in its decision, and “there is a sound and

substantial basis in the record for the court’s determination to order

supervised visitation” (Matter of Rice v Cole, 125 AD3d 1466, 1467, lv

denied 26 NY3d 909). Finally, the court did not abuse its discretion

in failing to impose sanctions for the father’s violation of the 2012

order and in dismissing the mother’s contempt petition (see generally

Matter of Anderson v Barlow, 256 AD2d 1234, 1235). 

Entered: March 25, 2016 Frances E. Cafarell

Clerk of the Court