MAY 11, 2022 DECISIONS

Matter of Englert v. Hilton, 2021-01424

the father appealed from a Family Court order, dated December 14, 2020,  made without a hearing, that dismissed his petition to modify a prior order dated December 17, 2017, made on consent of the parties, so as to extend his drop-off times to 8:30 p.m., to award him parental access from 8:00 p.m. on Christmas Eve through Christmas Day, on alternating years with the mother, and to permit the father’s girlfriend to drive the children during pick-ups and drop-offs on the condition that the father is present.

The order is affirmed.  The father failed to demonstrate the requisite evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Mackauer v. Meyes, 185 AD3d 694, 695; Matter of Werner v. Mazzenga, 174 AD3d 727, 729).

 

Matter of Durand v. Pierre-Louis, 2019-14484

The Family Court properly denied the father’s objections since he sought a downward modification of his child support obligation based upon his loss of employment but failed to meet his burden of demonstrating that he made diligent efforts to “secure employment commensurate with his or her education, ability, and experience” (Pathak v. Shukla, 164 AD3d 690, 691).

 

Matter of Aponte v. Jagnarain, 2021-02475

The Family Court conducted separate hearings on the parties’ family offense petitions and the father’s custody modification petition.  The Second Department determined that the lower court did not err in incorporating into the record of the custody and parental access proceeding the testimony of the witness who had testified at the hearing in the family offense proceeding.  The prior testimony was given under oath and related to the same subject matter as this instant case, and the witness was available for cross-examination at the earlier hearing, but the mother voluntarily failed to appear at that hearing.  The mother also had the opportunity to call the witness to testify at the hearing in the custody and parental access proceeding, and, if necessary, to request that the court deem her a hostile witness so that the mother could impeach her credibility, but she did not do so (see Matter of Carballeira v. Shumway, 273 AD2d 753, 757).

The Family Court determination that there had been a change in circumstances sufficient to warrant a modification of parental access based on evidence that the mother repeatedly made unfounded allegations that the father sexually abused the child, and that that caused the child, who was only four-years old, to be subjected to intrusive physical examinations is supported by a sound and substantial basis in the record (see Matter of Jorge JJ. V. Erica II., 191 AD3d 1188).  The order is affirmed.

 

Matter of Aponte v. Jagnarain, 2021-02472

The Family Court correctly denied the mother’s request to vacate her default in appearing since she failed to demonstrate a reasonable excuse for her failure to appear on the scheduled hearing date (see Matter of Goldstein v. Goldstein, 190 AD3d at 972-973; Matter of Hines v. Baptiste, 178 AD3d 825, 826; Matter of Abella v. Szileszky, 177 AD3d at 730).  The mother had discharged her attorney the night before the continued hearing, and the court denied her request for an adjournment, which the court had the discretion to do, particularly since the mother had previously discharged counsel under similar circumstances (see Greenberg v. Greenberg, 144 AD3d 625, 630-631; Matter of Wiley v. Musabyemariya, 118 AD3d 898, 899-900).  The mother had no reason to believe that her request to adjourn had been granted, and notwithstanding the court’s continued attempts to get into contact with the mother starting two days before the continued hearing was scheduled, the mother did not respond to any of the voicemail messages left by the court to both the mother and her sister.  Since the mother failed to demonstrate a reasonable excuse, the Second Department need not determine whether she had a potentially meritorious defense (see Matter of Abella v. Szileszky, 177 AD3d at 730; see also CPLR 5015[a][1]; Matter of Moreno v. Ramos, 174 AD3d at 717).