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In re Fiacco

Supreme Court of New York, Third Department

February 22, 2018

In the Matter of KRISTIN A. FIACCO, Respondent,
v.
JOSEPH J. FIACCO, Appellant. (And Another Related Proceeding.)

          Calendar Date: January 8, 2018

          Norbert A. Higgins, Binghamton, for appellant.

          Teresa C. Mulliken, Harpersfield, for respondent.

          Michelle E. Stone, Vestal, attorney for the child.

          Palmer J. Pelella, Owego, attorney for the children.

          Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.

          MEMORANDUM AND ORDER

          MULVEY, J.

         Appeal from an order of the Family Court of Broome County (Pines, J.), entered October 6, 2016, which partially granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of visitation.

         Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of three children (born in 2001, 2003 and 2007). The parties' 2013 judgment of divorce awarded them joint legal custody, with primary physical custody to the mother and specified parenting time to the father. In December 2015, the mother filed a petition seeking to have the father's visitation supervised based upon allegations that he, among other things, used excessive corporal punishment on the children. Soon thereafter, the father petitioned for primary physical custody of the children. Following fact-finding and Lincoln hearings, Family Court modified the prior order by directing that the father refrain from using corporal punishment or any other form of "intimidating punishment" to discipline the children, but otherwise left intact the provisions of that order. The father appeals.

         Preliminarily, we note that the father raises no arguments on appeal with respect to the dismissal of his modification petition and, as such, we deem any challenge with respect thereto to be abandoned (see Matter of Hempstead v Hyde, 144 A.D.3d 1438, 1439 n 1 [2016]; Matter of Lynn TT. v Joseph O., 143 A.D.3d 1089, 1091 [2016]). As to the mother's petition, a parent seeking to modify a prior order of custody and visitation must first demonstrate that a change in circumstances has occurred since the entry thereof to warrant a review of the children's best interests (see Scott Q. v Joy R., 151 A.D.3d 1206, 1207 [2017], lv denied 29 N.Y.3d 919');">29 N.Y.3d 919 [2017]; Matter of Alan U. v Mandy V., 146 A.D.3d 1186, 1187 [2017]). If this threshold burden is met, the parent must then demonstrate that modification of the underlying order is necessary to ensure the children's continued best interests (see id.). Given the superior position of Family Court to observe and evaluate the witnesses' testimony, we accord great deference to its factual findings and credibility assessments and will not disturb its determination if supported by a sound and substantial basis in the record (see Matter of Charles AA. v Annie BB., ___ A.D.3d ___, ___, 2018 NY Slip Op 00058, *3 [2018]; Matter of Whetsell v Braden, 154 A.D.3d 1212, 1213 [2017]; Matter of David J. v Leeann K., 140 A.D.3d 1209, 1210 [2016]).

         Here, ample evidence was presented at the fact-finding hearing regarding the father's use of inappropriate methods of discipline on the children. Testimony was presented concerning an incident that occurred at the father's home in December 2015, after the younger daughter refused to wash dishes or otherwise assist the family with household chores. Frustrated with her behavior, the father instructed the child - who was barefoot - to stand outside and thereafter attempted to throw a pot of water at her feet. On another occasion, the father struck this same child in the head and shoulder in an effort to discipline her. During his testimony, the father freely acknowledged using "scare tactics" - such as yelling, slapping and other physical contact - as a form of discipline, and generally agreed with the use of physical discipline under certain circumstances. The mother explained that the father often made recommendations as to how she should be physically disciplining the children, and similarly testified to the father's continued commentary about the appropriateness of the use of this form of punishment. While the father attempted to minimize or otherwise explain his conduct, Family Court expressly found his testimony to be "evasive, wholly self-serving and lacking credibility" and concluded that the father lacked insight as to the impact that his threatening demeanor and punishment tactics have on the children. Based upon our review of the record as a whole, including the transcript of the Lincoln hearing, and according appropriate deference to Family Court's credibility assessments, we are satisfied that the court's modification of the underlying order is supported by a sound and substantial basis in the record (see Matter of Joseph G. v Winifred G., 104 A.D.3d 1067, 1068-1069 [2013], lv denied 21 N.Y.3d 858');">21 N.Y.3d 858 [2013]; Matter of Bentley v Bentley, 81 A.D.3d 1012, 1012 [2011]; see also Matter of Andrew S. v Robin T., 145 A.D.3d 1209, 1210-1211 [2016]).

         Finally, the father failed to preserve for our review his contention that the children should not have been jointly represented by the same attorney because the youngest child's wishes differed from those of the two older children (see Matter of Emmanuel J. [Maximus L.], 149 A.D.3d 1292, 1297 [2017]; Matter of Mary R.F. [Angela I.], 144 A.D.3d 1493, 1494 [2016], lv denied 28 N.Y.3d 915');">28 N.Y.3d 915 [2017]; Matter of Kaseem J., 52 A.D.3d 1321, 1322 [2008]). In any event, were we to consider the issue, we would find it to be without merit (see Matter of Smith v Anderson, 137 A.D.3d 1505, 1509 [2016]; Matter of Barrington v Barrington, 88 A.D.3d 1171, 1172-1173 [2011]; Barbara ZZ. v Daniel A., 64 A.D.3d 929, 933-934 [2009]; Matter of Rosenberg v Rosenberg, 261 A.D.2d 623, 624 [1999]).

          Egan Jr., J.P., Lynch, Clark and ...


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