In the Matter of KRISTIN A. FIACCO, Respondent,
JOSEPH J. FIACCO, Appellant. (And Another Related Proceeding.)
Calendar Date: January 8, 2018
Norbert A. Higgins, Binghamton, for appellant.
C. Mulliken, Harpersfield, for respondent.
Michelle E. Stone, Vestal, attorney for the child.
J. Pelella, Owego, attorney for the children.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
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
(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.
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 ; Matter of Lynn TT. v Joseph
O., 143 A.D.3d 1089, 1091 ). 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
, lv denied 29 N.Y.3d 919');">29 N.Y.3d 919 ; Matter
of Alan U. v Mandy V., 146 A.D.3d 1186, 1187 ). 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
; Matter of Whetsell v Braden, 154 A.D.3d
1212, 1213 ; Matter of David J. v Leeann K.,
140 A.D.3d 1209, 1210 ).
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 , lv
denied 21 N.Y.3d 858');">21 N.Y.3d 858 ; Matter of Bentley v
Bentley, 81 A.D.3d 1012, 1012 ; see also
Matter of Andrew S. v Robin T., 145 A.D.3d 1209,
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
; Matter of Mary R.F. [Angela I.], 144 A.D.3d
1493, 1494 , lv denied 28 N.Y.3d 915');">28 N.Y.3d 915 ;
Matter of Kaseem J., 52 A.D.3d 1321, 1322 ).
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 ; Matter of Barrington v
Barrington, 88 A.D.3d 1171, 1172-1173 ;
Barbara ZZ. v Daniel A., 64 A.D.3d 929, 933-934
; Matter of Rosenberg v Rosenberg, 261 A.D.2d
623, 624 ).
Jr., J.P., Lynch, Clark and ...