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

1160
CAF 12-01822
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF ROSS BREWER,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAWN M. SOLES, RESPONDENT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
RESPONDENT-APPELLANT.

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR PETITIONER-RESPONDENT.

CHRISTINE M. VALKENBURGH, ATTORNEY FOR THE CHILD, BATH.


     Appeal from an order of the Family Court, Steuben County (Timothy
K. Mattison, J.H.O.), entered September 17, 2012. The order, inter
alia, transferred primary physical placement of the subject child from
respondent to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent mother appeals from an order entered
after an evidentiary hearing that, inter alia, transferred primary
physical placement of the subject child from the mother to petitioner
father. The mother contends that Family Court erred in finding that
the father made the requisite showing of a change in circumstances to
warrant an inquiry into the best interests of the child. According to
the father, however, he was not required to make that showing inasmuch
as the prior custody order, entered upon consent of the parties in
2009, provided that all of its provisions “are without prejudice to
either party and that all parties may seek modification.” Assuming,
without deciding, that the father was required to establish a change
in circumstances notwithstanding the above-referenced language of the
prior custody order (cf. generally Matter of Murphy v Wells, 103 AD3d
1092, 1092-1093, lv denied 21 NY3d 854; Matter of Apostolos v
Fairservice, 23 AD3d 720, 722; Matter of Schattinger v Schattinger,
256 AD2d 1209, 1210, appeal dismissed 93 NY2d 919), we conclude that
the court properly determined that he met that burden, thus warranting
an inquiry into whether the child’s best interests would be served by
modifying the existing custody arrangement (see Matter of Cole v
Nofri, 107 AD3d 1510, 1511-1512; Matter of O’Connell v O’Connell, 105
AD3d 1367, 1367).
                                 -2-                          1160
                                                         CAF 12-01822

     Since entry of the prior custody order, the child has had to
repeat kindergarten and has struggled academically in the first and
second grades. According to the child’s second grade teacher, the
child frequently falls asleep in the classroom and, despite being a
year older than most second graders, is not on “grade level” and ranks
“towards the bottom” of the class. The teacher further testified that
the child appears sullen, sad and withdrawn. Also since entry of the
prior custody order, the child has been referred for mental health
treatment due to behavior exhibited both at school and at home.
Although it is true, as the mother points out, that the child suffered
from fatigue and struggled at school when the prior custody order was
entered, we conclude that the court properly determined that the
child’s “downward slide” constituted a change of circumstances
sufficient to warrant an inquiry into the child’s best interests.

     We further conclude that, contrary to the mother’s contention,
there is a sound and substantial basis in the record to support the
court’s determination that it was in the child’s best interests to
award primary physical placement to the father (see Matter of Marino v
Marino, 90 AD3d 1694, 1695-1696; see also Matter of Tarant v
Ostrowski, 96 AD3d 1580, 1582, lv denied 20 NY3d 855). The child has
performed poorly at school for four years while living primarily with
the mother. The child’s teacher and school counselor testified that
the child reported that he stayed up late watching television, which
they attributed as a cause of the child’s fatigue. Indeed, the
teacher testified that the child sometimes fell asleep in class or was
required to go to the school nurse’s office to nap. Although the
mother had removed the television from the child’s room at the
suggestion of the counselor, the child reported to the counselor that
the television was again in his room. We note that the mother is
unemployed and must rely on others for transportation. The father, in
contrast, is gainfully employed and is able to provide a more stable
home for the child. According to the child’s teacher, the child was
more alert and less sullen following weekend visitation with the
father. We further note that the Attorney for the Child supported the
father’s modification petition and now contends that the order should
be affirmed. Under the circumstances, and considering that “a court’s
determination regarding custody and visitation issues, based upon a
first-hand assessment of the credibility of the witnesses after an
evidentiary hearing, is entitled to great weight” (Marino, 90 AD3d at
1695), we perceive no basis upon which to set aside the court’s award
of primary physical placement of the child to the father.

     Finally, the mother is not aggrieved by the court’s implicit
denial of two violation petitions filed by the father and thus may not
raise contentions on appeal with respect thereto (see Johnson v
Johnson, 68 AD3d 1685, 1686; see generally CPLR 5511; K.J.D.E. Corp. v
Hartford Fire Ins. Co., 89 AD3d 1531, 1532).



Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
