State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 29, 2016 522351 

____________________________________

In the Matter of CRAIG C.

ABRAM,

Appellant,

v

MEMORANDUM AND ORDER

MICHELLE A. ABRAM,

Respondent.

(And Two Other Related Proceedings.)

____________________________________

Calendar Date: November 17, 2016

Before: Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

__________

Sandra M. Colatosti, Albany, for appellant.

Jeffrey Berkun, Albany, for respondent.

Kim Lawyer, Delmar, attorney for the child.

__________

Devine, J.

Appeal from an order of the Family Court of Albany County

(Maney, J.), entered November 4, 2015, which, in three

proceedings pursuant to Family Ct Act article 6, dismissed the

petitions at the close of petitioner's proof.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) are the divorced parents of a son (born

in 2005). The mother has legal and physical custody of the child

and, pursuant to a July 2014 order, the father was awarded

parenting time to be supervised by one of three named individuals

or any person "mutually agreed upon" by the parties. The 2014
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order further allowed the child to contact the father by

telephone if the child chose to do so.

In January 2015, the father petitioned to modify the 2014

order to allow unsupervised visitation and other relief. Family

Court issued a temporary order in April 2015 that awarded

supervised visitation every Tuesday evening and directed

"reasonable telephone contact" between the father and the child. 

The father then filed a petition alleging that the mother had

willfully violated the 2014 order and temporary order, as well as

one seeking modification of the temporary order. Family Court

conducted a hearing on the petitions and, at the close of the

father's proof, granted the mother's motion to dismiss them. The

father now appeals.

With regard to the modification petitions, the father "was

required to establish a change in circumstances warranting an

inquiry into whether the best interests of the child[] would be

served by modifying the existing" visitation arrangement (Matter

of Caswell v Caswell, 134 AD3d 1175, 1176 [2015]; see Matter of

Mary BB. v George CC., 141 AD3d 759, 760 [2016]). With regard to

the violation petition, the father "was obliged to establish that

there was a lawful court order in effect with a clear and

unequivocal mandate, that the [mother] had actual knowledge of

the conditions of that order, and that [her] actions or failure

to act defeated, impaired, impeded or prejudiced a right of the

[father]" (Matter of Prefario v Gladhill, 140 AD3d 1235, 1236

[2016] [internal quotation marks and citations omitted];

see Matter of Eller v Eller, 134 AD3d 1319, 1320 [2015]). In

either case, inasmuch as the father's petitions were resolved in

the context of the mother's motion to dismiss, Family Court had

to accept the father's evidence as true, afford him the benefit

of any favorable inference and resolve all credibility questions

in his favor (see Matter of Mary BB. v George CC., 141 AD3d at

760; Matter of John SS. v Amy SS., 61 AD3d 1305, 1306 [2009]).

The father testified that his failure to fully take

advantage of the supervised parenting time available to him

stemmed from problems in arranging for supervisors. Most of

those problems were not the fault of the mother but, that being

said, the father testified that he proposed a new supervisor and
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that, despite numerous attempts, the mother refused to

communicate with that person. The father further testified that

the mother refused to facilitate telephone communication between

him and the child and placed the calls on speaker phone when they

did occur. Accepting the foregoing proof as true and making all

inferences in the father's favor, it revealed a relationship

between the parties that had deteriorated enough to impair the

father's contact with the child and, as such, indicated a change

in circumstances sufficient to warrant revisiting the terms of

the order (see Matter of Parchinsky v Parchinsky, 114 AD3d 1040,

1041 [2014]; Matter of Betancourt v Boughton, 204 AD2d 804, 806-

807 [1994]; cf. Matter of Chase v Benjamin, 44 AD3d 1130, 1131-

1132 [2007]). The mother's motion to dismiss the modification

petitions should therefore have been denied and remittal is

necessary for further proceedings on them (see Matter of Mary BB.

v George CC., 141 AD3d at 761). 

Family Court did, however, properly dismiss the violation

petition. The father claims on appeal that the mother "did not

put a great deal of effort into" arranging the parenting time

contemplated by the 2014 and temporary orders. The mother is not

directed by either order to take specific steps in that regard

and the father provided nothing to suggest that she willfully

violated a "clear and unequivocal mandate" of them (Matter of

Prefario v Gladhill, 140 AD3d at 1236; see Matter of Miller v

Miller, 77 AD3d 1064, 1065-1066 [2010], lv dismissed and denied

16 NY3d 737 [2011]). 

Peters, P.J., Garry, Mulvey and Aarons, JJ., concur.
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ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as dismissed petitioner's

modification petitions; matter remitted to the Family Court of

Albany County for further proceedings not inconsistent with this

Court's decision; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court