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

752
CA 14-01627
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


TAMMY GARDNER, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NATHAN KORTHALS, DEFENDANT-RESPONDENT.


BENNETT SCHECHTER ARCURI & WILL LLP, BUFFALO (ANDREW F. EMBORSKY OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

MINDY L. MARRANCA, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered September 3, 2014. The order, among other
things, allowed the subject child to register for and attend Tonawanda
High School.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the first ordering
paragraph, and as modified the order is affirmed without costs, and
the matter is remitted to Supreme Court, Erie County, for further
proceedings in accordance with the following memorandum: Defendant
father moved, inter alia, to change the school in which the subject
child is enrolled because the father’s home is now the child’s primary
residence pursuant to a stipulated order, and the father also sought
to modify the access schedule contained in the stipulated order. We
reject the contention of the Attorney for the Child that the mother’s
appeal from the order granting the father’s motion is moot because the
child no longer wishes to change schools, and his parents support his
decision. The order is adverse to the interests of the mother such
that her “rights . . . will be directly affected by the determination
of the appeal” in the absence of an agreement by the father
withdrawing his request for that relief (Matter of Hearst Corp. v
Clyne, 50 NY2d 707, 714).

     We agree with the mother that Supreme Court erred in granting
that part of the father’s motion seeking to change the school in which
the child is enrolled without first conducting a hearing and
considering any additional extrinsic evidence on the issue whether the
parties intended a change to the child’s school enrollment to be
contemporaneous with his change in primary residence (see Fecteau v
Fecteau, 97 AD3d 999, 1000; Matter of Perry v Knab, 231 AD2d 854, 854-
855; see generally Walker v Walker, 42 AD3d 928, 928-929, lv dismissed
9 NY3d 947). We therefore modify the order by vacating the ordering
paragraph authorizing the change in the child’s high school
                                 -2-                           752
                                                         CA 14-01627

enrollment, and we remit the matter to Supreme Court for such a
hearing unless the court determines upon remittal that the issue is
moot.

     We reject the mother’s contention, however, that the court erred
in granting that part of the father’s motion seeking to modify the
access schedule. Under the totality of the circumstances, giving
particular weight to the then-16-year-old child’s wishes and the
adverse effect that the current access schedule would have on his time
with his brother, we conclude that the court properly determined that
there had been a change in circumstances to warrant an inquiry into
the best interests of the child in this respect (see Matter of McVey v
Barnett, 107 AD3d 808, 809; Matter of Rulinsky v West, 107 AD3d 1507,
1508; cf. Matter of Boedecker-Frey v Boedecker-Frey, 176 AD2d 392,
393). We further conclude that the court did not err in modifying the
access schedule inasmuch as the record establishes that “the adjusted
[access] schedule is in the best interests of the child[ ]” (Matter of
Jones v Laird, 119 AD3d 1434, 1435, lv denied 24 NY3d 908), and we
note in any event that the modified schedule has no meaningful adverse
impact on the mother’s interests.




Entered:   July 2, 2015                         Frances E. Cafarell
                                                Clerk of the Court
