         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1311
CAF 11-02042
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF SUZALYN E. HOFFMEIER,
PETITIONER-APPELLANT,

                    V                                MEMORANDUM AND ORDER

THOMAS BYRNES, RESPONDENT-RESPONDENT.


EMILY KARR-COOK, ELMIRA, FOR PETITIONER-APPELLANT.

CAROLYN KELLOGG JONAS, ATTORNEY FOR THE CHILDREN, WELLSVILLE, FOR
JAYDEN C. AND CHRISTOPHER B.


     Appeal from an order of the Family Court, Steuben County (Peter
C. Bradstreet, J.), entered September 28, 2011 in a proceeding
pursuant to Family Court Act article 6. The order denied the
petitions to modify a prior order of custody.

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

     Memorandum: Petitioner mother commenced this proceeding seeking
to modify a prior order of custody that, inter alia, granted physical
custody of the subject children to respondent father and visitation to
her. The prior order was based upon a full evidentiary hearing and
had been entered approximately two months prior to the filing of the
instant petitions. We reject the mother’s contention that Family
Court erred in concluding that she failed to establish a change in
circumstances sufficient to warrant a review of the prior custody
determination.

     We note at the outset that, although the order on appeal does not
mention “changed circumstances,” the court concluded, in the decision
upon which the order is based, that the mother failed to establish a
change in circumstances sufficient to warrant a review of the existing
custody arrangement. It is well settled that “where an order and
decision conflict, the decision controls” (Matter of Triplett v Scott,
94 AD3d 1421, 1421 [internal quotation marks omitted]; see Matter of
King v King, 309 AD2d 1207, 1208), and we thus conclude that the court
made the requisite threshold finding that the mother failed to
establish a change in circumstances sufficient to warrant an inquiry
into whether the best interests of the children would be served by
altering their existing custody arrangement (see Matter of Chrysler v
Fabian, 66 AD3d 1446, 1447, lv denied 13 NY3d 715; cf. Matter of Carey
v Windover, 85 AD3d 1574, 1574, lv denied 17 NY3d 710; Matter of Moore
                                 -2-                          1311
                                                         CAF 11-02042

v Moore, 78 AD3d 1630, 1630, lv denied 16 NY3d 704).

     With respect to the merits, we note that the only parenting
problems that arose in the two months between the issuance of the
prior order and the filing of the mother’s instant petitions had been
resolved prior to the hearing thereon. Thus, we agree with the court
that the mother failed to establish a sufficient change in
circumstances such that reconsideration of the existing custody
arrangement was required (see Matter of Clark v Ingraham, 88 AD3d
1079, 1079-1080).




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
