State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 8, 2015 517648 

_____________________________________

In the Matter of SHAUN W.

DORNBURGH,

Appellant,

v MEMORANDUM AND ORDER

JEAN M. YEARRY,

Respondent.

(And Six Other Related Proceedings.)

_____________________________________

Calendar Date: November 13, 2014

Before: Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.

__________

Rosemarie Richards, Gilbertsville, for appellant.

Joseph Nalli, Fort Plain, for respondent.

Paul G.J. Madison, Stamford, attorney for the child.

__________

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