        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

286
CAF 11-01896
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF BARNEY M. MATHEWSON, JR.,
PETITIONER-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELIZABETH SESSLER, RESPONDENT-APPELLANT.


LINDA M. CAMPBELL, SYRACUSE, FOR RESPONDENT-APPELLANT.

TERRI BRIGHT, FABIUS, FOR PETITIONER-RESPONDENT.

DENNIS S. LERNER, ATTORNEY FOR THE CHILDREN, SYRACUSE, FOR MICHAEL
B.M., KATHLEEN M.M., AND SAMUEL N.M.


     Appeal from an order of the Family Court, Onondaga County (Gina
M. Glover, R.), entered April 25, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted the
parties joint legal custody of their children.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law and facts by denying the father’s
petition in part, vacating the 1st through 11th ordering paragraphs
and inserting in place thereof the following:

         ORDERED, that the father shall enjoy parenting time
    with the children on alternate weekends beginning May 1,
    2012, from Friday at 6:30 P.M. until Sunday at 6:30 P.M.;
    and it is further

         ORDERED, that the mother shall enjoy parenting time
    with the children each and every Thanksgiving weekend from
    Wednesday at 6:30 P.M. until Sunday at 6:30 P.M. and that
    such time shall take precedence over the father’s regularly
    scheduled alternate weekend parenting time, without a right
    to the father for makeup time in the event there is a
    conflict; and it is further

          ORDERED, that the father shall enjoy parenting time
     with the children each and every Easter weekend from Friday
     at 6:30 P.M. until Sunday at 6:30 P.M.; and it is further

          ORDERED, that the father shall enjoy parenting time
     with the children on the father’s birthday for a minimum of
     three hours and each of the children’s birthdays for a
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                                                         CAF 11-01896

     minimum of two hours; and it is further

          ORDERED, that the mother shall enjoy parenting time
     with the children on the mother’s birthday for a minimum of
     three hours and each of the children’s birthdays for a
     minimum of two hours; and it is further

          ORDERED, that the father shall enjoy parenting time
     with the children on Father’s Day from 10:00 A.M. until 6:30
     P.M., even in the event that Father’s Day falls on an “off”
     weekend; and it is further

          ORDERED, that the mother shall enjoy parenting time
     with the children on Mother’s Day from 10:00 A.M. until 6:30
     P.M. and that such time shall take precedence over the
     father’s regularly scheduled alternate weekend parenting
     time, without a right to the father for makeup time in the
     event there is a conflict; and it is further

          ORDERED, that during each summer, the father shall
     enjoy uninterrupted parenting time with the children during
     two consecutive weeks to run from Friday at 6:30 P.M. until
     the second Friday thereafter at 6:30 P.M. The father shall
     notify the mother by the first day of April which two
     consecutive weeks he will use for such parenting time; and
     it is further

          ORDERED, that during each summer, the mother shall
     enjoy uninterrupted parenting time with the children during
     two consecutive weeks to run from Friday at 6:30 P.M. until
     the second Friday thereafter at 6:30 P.M., and that such
     time shall take precedence over the father’s regularly
     scheduled alternate weekend parenting time, without a right
     to the father for makeup time in the event there is a
     conflict. The mother shall notify the father by the first
     day of June which two consecutive weeks she will use for
     such parenting time; and it is further

          ORDERED, that the father shall have parenting time with
     the children on alternate holidays, commencing with Memorial
     Day 2012, as follows: New Year’s Day, Martin Luther King,
     Jr. Day, President’s Day, Memorial Day, Independence Day,
     Labor Day, Columbus Day, Veteran’s Day, Christmas Eve and
     Christmas Day;

and as modified the order is affirmed without costs.

     Memorandum: Respondent mother appeals from an order that granted
petitioner father’s petition seeking to modify the prior order of
custody and visitation by, inter alia, awarding him joint legal
custody of the parties’ three children. The parties previously
entered into a stipulation whereby it was agreed that the mother would
have “sole legal custody and placement of the children, subject to the
[father’s] rights of visitation.” The father was to have visitation
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                                                              CAF 11-01896

every other Saturday from 3:00 P.M. to 7:00   P.M.    That stipulation was
incorporated into the judgment of divorce.

     We note at the outset that, although Family Court failed “to set
forth ‘the facts it deems essential’ and upon which its determination
is based” (Matter of Whitaker v Murray, 50 AD3d 1185, 1186, quoting
CPLR 4213 [b]; see generally Family Ct Act § 165 [a]), remittal of the
matter is not required inasmuch as “ ‘the record is . . . sufficient
to enable this Court to make the requisite findings of fact’ ” (Matter
of Bradbury v Monaghan, 77 AD3d 1424, 1425).

     We agree with the mother that the father failed to make a
sufficient showing of a change in circumstances to warrant
modification of the existing custody arrangement (see Matter of
Gridley v Syrko, 50 AD3d 1560, 1561; cf. Matter of Stacey L.B. v
Kimberly R.L., 12 AD3d 1124, 1124-1125, lv denied 4 NY3d 704). “[A]
long-term custodial arrangement established by agreement[, such as the
arrangement herein,] should prevail ‘unless it is demonstrated that
the custodial parent is unfit or perhaps less fit’ ” (Fox v Fox, 177
AD2d 209, 211), and that is not the case here. Contrary to the
father’s contention, his new employment, which allowed him more free
time to spend with the children, and his purchase of a home were
insufficient to constitute the requisite change in circumstances. We
therefore modify the order by denying that part of the father’s
petition seeking joint custody of the children and vacating the first
and second ordering paragraphs.

     We further agree with the mother that the court abused its
discretion in setting the revised visitation schedule. Although we
conclude that the father failed to meet his “ ‘burden of demonstrating
a sufficient change in circumstances to warrant modification’ ” of the
visitation schedule (Matter of Darla N. v Christine N. [appeal No. 2],
289 AD2d 1012, 1012), we note that the mother concedes that an
increase in the father’s visitation from the original visitation
schedule is in the best interests of the children, and it is within
this Court’s authority to modify orders to increase or decrease
visitation (see generally Matter of Roody v Charles, 283 AD2d 945,
946). We therefore further modify the order by vacating the 3rd
through 11th ordering paragraphs and inserting in place thereof a
visitation schedule that reflects a reasonable balance between the
excessive visitation granted by the court and the limited prior
visitation schedule.




Entered:   April 27, 2012                            Frances E. Cafarell
                                                     Clerk of the Court
