IN THE MATTER OF RONALD E. PEAY, JR., PETITIONER-RESPONDENT-RESPONDENT,
MICHELLE L. PEAY, RESPONDENT-PETITIONER-APPELLANT. (APPEAL NO. 1.)
J. PAJAK, ALDEN, FOR RESPONDENT-PETITIONER-APPELLANT.
CHRISTOPHER BRECHTEL, ATTORNEY FOR THE CHILDREN, BUFFALO.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND
from an order of the Family Court, Erie County (Deanne M.
Tripi, J.), entered April 20, 2016. The order, among other
things, found respondent-petitioner in contempt of court and
denied her petition to modify a prior stipulated order of
custody and visitation.
hereby ORDERED that the order so appealed from is unanimously
modified on the law by inserting after the first ordering
paragraph the following: "ORDERED that Michelle L.
Peay's conduct was calculated to, or actually did,
defeat, impair, impede, or prejudice the rights or remedies
of Ronald E. Peay, Jr., and it is hereby" and as
modified the order is affirmed without costs.
In these consolidated appeals, respondent-petitioner mother
appeals from two orders that, inter alia, found her in
contempt of court and denied her petition to modify a prior
stipulated order of custody and visitation. The prior
stipulated order, inter alia, granted the mother custody of
the subject children with visitation to petitioner-respondent
father on two evenings per week. The mother sought to modify
the prior stipulated order to require the father's
visitation with the children to be supervised. The father
opposed supervised visitation and commenced a proceeding to
hold the mother in contempt for refusing to comply with the
prior stipulated order on 21 specific dates.
we note that the orders in appeal Nos. 1 and 2, which were
entered on the same date, contain identical findings of fact
and identical ordering paragraphs, and thus are duplicative
of each other. It is well settled that an appeal does not lie
from a duplicative order (see generally Matter of Chendo
O., 175 A.D.2d 635, 635 [4th Dept 1991]), and we
therefore dismiss the appeal from the order in appeal No. 2.
to the mother's contention, the father established by
clear and convincing evidence that "a lawful court order
clearly expressing an unequivocal mandate was in effect, that
the [mother]... had actual knowledge of its terms, and that
the violation... defeated, impaired, impeded, or prejudiced
the rights of [the father]" (Matter of Howell v
Lovell, 103 A.D.3d 1229, 1230 [4th Dept 2013] [internal
quotation marks omitted]; see Judiciary Law §
753 [A] ). The father testified that the mother failed to
bring one or more of the children for visitation on four
scheduled dates in 2015, i.e., May 16, May 27, June 10, and
June 13. The mother admitted to those failures. Indeed, it
was undisputed that the father did not see the children
between June 6, 2015 and March 8, 2016, the date of the
hearing. In its decision, Family Court found the mother in
contempt of court based on her refusal to allow visitation on
the above dates, and it emphasized that the father had
"not seen the children since June 6, 2015" despite
the existence of the prior stipulated order. We note,
however, that the court did not expressly find that the
contemptuous acts were "calculated to, or actually did,
defeat, impair, impede, or prejudice the [father's]
rights or remedies" (see § 770). Inasmuch
as the finding of contempt is supported by the record, we may
correct the order to add that language (see Biggio v
Biggio, 41 A.D.3d 753, 754 [2d Dept 2007]; cf.
Matter of Wilce v Scalise, 81 A.D.3d 1407, 1407-1408
[4th Dept 2011]). We therefore modify the order by adding an
ordering paragraph containing the requisite recital.
extent that the mother contends that the court
inappropriately imposed a suspended jail sentence, we
conclude that her contention is moot inasmuch as that portion
of the order has expired according to its own terms (see
Matter of Dubois v Piazza, 107 A.D.3d 1587, 1588 [4th
mother further contends that the court abused its discretion
in precluding her from testifying about a statement that the
parties' son made concerning alleged abuse at the
father's home. The mother failed to preserve that
contention for our review (see Matter of William O. v
John A., 151 A.D.3d 1203, 1205 [3d Dept 2017];
Mohamed v Cellino & Barnes, 300 A.D.2d 1116,
1116 [4th Dept 2002], lv denied 99 N.Y.2d 510');">99 N.Y.2d 510
). We note that the court held a Lincoln
hearing and spoke directly and extensively with the son about
the alleged incident.
to the mother's final contention, we conclude that the
court properly dismissed her petition seeking to modify the
prior stipulated order. A party seeking to modify an existing
custody arrangement must demonstrate a change in
circumstances sufficient to warrant an inquiry into whether a
change in custody is in the best interests of the children
(see Matter of Yaddow v Bianco, 67 A.D.3d 1430, 1430
[4th Dept 2009]; see also Matter of Gross v Gross,
119 A.D.3d 1453, 1453 [4th Dept 2014]). The court's
determination that the mother failed to demonstrate the
necessary change in circumstances is supported by a sound and
substantial basis in the record (see Matter of Joyce S. v
Robert W.S., 142 A.D.3d 1343, 1344 [4th Dept 2016],
lv denied29 N.Y.3d 906');">29 N.Y.3d 906 ; cf. Matter of
Chapman v Tucker, 74 A.D.3d 1905, 1906 [4th Dept 2010]).
The mother alleged that there was a change in circumstances
because the parties' son sustained a bruise while in the
father's care. The father testified that the son was
fighting outside with his sister, so the father placed the
son inside the house on a couch. The paternal grandmother,
who was present for the incident, gave testimony consistent
with the father's testimony. In addition, the court spoke
to the son in camera. Based on the ...