Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Montalbano

Supreme Court of New York, Fourth Department

November 17, 2017

IN THE MATTER OF RACHEL A. MONTALBANO, PETITIONER-RESPONDENT,
v.
GREGORY F. BABCOCK, RESPONDENT-APPELLANT. (APPEAL NO. 2.)

          DAVIS LAW OFFICE, PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT-APPELLANT.

          D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF COUNSEL), FOR PETITIONER-RESPONDENT.

          COURTNEY S. RADICK, ATTORNEY FOR THE CHILD, OSWEGO.

          PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND WINSLOW, JJ.

         Appeal from an amended order of the Family Court, Oswego County (Thomas Benedetto, R.), entered July 29, 2016 in a proceeding pursuant to Family Court Act article 6. The amended order, among other things, awarded petitioner sole legal custody of the subject child.

         It is hereby ORDERED that the amended order so appealed from is unanimously affirmed without costs.

         Memorandum: Petitioner mother commenced this proceeding alleging that respondent father took the parties' son on a boat ride in violation of an order requiring that his visitation with the child be supervised. In her petition, the mother requested that she be awarded sole legal custody of the child. Following fact-finding and dispositional hearings, Family Court issued an order and amended order that, inter alia, modified the prior order of custody and visitation to grant the mother sole legal custody and to provide that the father's visitation would take place through a particular agency. At the outset, we dismiss the father's appeal from the order in appeal No. 1 because that order was superseded by the amended order in appeal No. 2 (see Matter of Tuttle v Mateo [appeal No. 3], 121 A.D.3d 1602, 1603 [4th Dept 2014]).

         The father contends that the court erred in failing to conduct a Lincoln hearing with the child, who was 13 years old at the time of the fact-finding and dispositional hearings. That contention is not preserved for our review because the father did not request a Lincoln hearing (see Matter of Olufsen v Plummer, 105 A.D.3d 1418, 1419 [4th Dept 2013]). In any event, we conclude that the court did not abuse its discretion in failing to conduct such a hearing, inasmuch as the Attorney for the Child provided the court with sufficient information concerning the child's wishes, i.e., that the child was in favor of the mother's petition (see Matter of Pfalzer v Pfalzer, 150 A.D.3d 1705, 1706 [4th Dept 2017], lv denied 29 N.Y.3d 918 [2017]; cf. Matter of Noble v Brown, 137 A.D.3d 1714, 1714-1715 [4th Dept 2016]; see generally Matter of Walters v Francisco, 63 A.D.3d 1610, 1611 [4th Dept 2009]).

         We reject the father's further contention that the court erred in permitting the mother to testify to out-of-court statements made by the child. Such statements, if corroborated, are admissible in custody and visitation proceedings that are "based in part upon allegations of abuse or neglect" (Matter of Cobane v Cobane, 57 A.D.3d 1320, 1321 [3d Dept 2008], lv denied 12 N.Y.3d 706 [2009]; see Family Ct Act § 1046 [a] [vi]; Matter of Hamilton v Anderson, 143 A.D.3d 1086, 1087 [3d Dept 2016]; Matter of East v Giles, 134 A.D.3d 1409, 1410-1411 [4th Dept 2015]). Here, the mother's petition included a screenshot of a Facebook post in which the father stated that the child himself had operated the boat for the first time, and had raced another boat at 70 miles per hour. We conclude that the father's alleged conduct in allowing a 13-year-old child with no prior experience to operate a boat in that manner "would support a finding of neglect" (Matter of Bernthon v Mattioli, 34 A.D.3d 1165, 1166 [3d Dept 2006]; see generally § 1012 [f] [i] [B]), and that the child's statements about the incident were corroborated by the screenshot (see Matter of Mildred S.G. v Mark G., 62 A.D.3d 460, 462 [1st Dept 2009]), which was properly admitted in evidence at the fact-finding hearing based on the mother's testimony that it accurately represented the father's Facebook page on the date in question and that she had communicated with the father through his Facebook page in the past (see Matter of Rutland v O'Brien, 143 A.D.3d 1060, 1062 [3d Dept 2016]; see generally People v Price, 29 N.Y.3d 472, 478-480 [2017]).

         We also reject the father's contention that the court erred in failing to set a more specific schedule for his supervised visitation (cf. Matter of Ordona v Cothern, 126 A.D.3d 1544, 1545-1546 [4th Dept 2015]). In its decision, the court stated that it intended that the father receive visitation comparable in "frequency and duration" to his visitation under the prior order, "subject to the availability of" the supervising agency. We conclude that the court thereby satisfied its obligation to set a visitation schedule even though it did not specify the days of the week or times of day that visitation would occur (see Matter of Izrael J. [Lindsay F.], 149 A.D.3d 630, 630 [1st Dept 2017]; Matter of Alan U. v Mandy V., 146 A.D.3d 1186, 1189 [3d Dept 2017]; see generally Matter of Vieira v Huff, 83 A.D.3d 1520, 1521 [4th Dept 2011]).

         We further conclude that there is a sound and substantial basis in the record for the court's award of sole legal custody to the mother (see Matter of Terramiggi v Tarolli, 151 A.D.3d 1670, 1671 [4th Dept 2017]). The record establishes that joint custody was no longer feasible in view of the parties' inability to communicate (see Matter of Smith v O'Donnell, 107 A.D.3d 1311, 1313 [3d Dept 2013]; see generally Matter of Ladd v Krupp, 136 A.D.3d 1391, 1392 [4th Dept 2016]), and that an award of sole custody to the mother was in the child's best interests (see generally Matter of Gorton v Inman, 147 A.D.3d 1537, 1538-1539 [4th Dept 2017]). Even assuming, arguendo, that the court did not set forth sufficient findings with respect to the best interests of the child, we conclude that reversal is not thereby warranted inasmuch as the record is adequate for us to make a best interests determination, and it supports the result reached by the court (see generally Matter of Howell v Lovell, 103 A.D.3d 1229, 1231 [4th Dept 2013]).

         We have considered the father's remaining contentions and conclude that they do not warrant reversal or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.