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

1363
CAF 10-02113
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


IN THE MATTER OF JAMES P. CANFIELD,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LEE A. MCCREE, RESPONDENT-APPELLANT.


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

JOHN M. MURPHY, JR., ATTORNEY FOR THE CHILD, PHOENIX, FOR MACKENZIE B.


     Appeal from an order of the Family Court, Jefferson County
(Richard V. Hunt, J.), entered September 13, 2010 in a proceeding
pursuant to Family Court Act article 6. The order, among other
things, awarded petitioner increased visitation with the subject
child.

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

     Memorandum: Respondent mother appeals from an order granting
petitioner father’s petition seeking to modify a prior order of
custody and visitation entered upon the father’s default by awarding
him increased visitation with the parties’ child. We affirm. The
mother’s contention that Family Court improperly shifted the burden of
proof by requiring her to establish that the father was not entitled
to “standard” visitation is unpreserved for our review. The mother
did not object to the court’s multiple statements concerning the
burden of proof and, indeed, the mother’s attorney agreed with the
statement of the court that the mother bore the burden of proof (see
Matter of Smith v Smith, 308 AD2d 592; see generally CPLR 5501 [a]).
The mother also failed to preserve for our review her contention that
the father failed to establish a change of circumstances warranting
review of the prior order (see Matter of Deegan v Deegan, 35 AD3d
736). Notably, the mother did not move to dismiss the father’s
petition at the close of his proof or at the conclusion of the hearing
on that ground. In any event, the mother’s contentions are without
merit.

     We reject the mother’s further contention that the court erred in
precluding testimony relevant to the determination with respect to the
child’s best interests. Contrary to the contention of the mother, the
court did not preclude her testimony concerning the father’s alleged
attempted suicide in 2004 on the ground that it was too remote.
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                                                         CAF 10-02113

Rather, the court specifically permitted such testimony over the
father’s objection, but it advised the mother that such testimony was
not relevant to the best interests of the child in the absence of
evidence concerning the father’s recent mental health issues. The
court also permitted the mother to testify, again over the father’s
objection, that the father struck her in 2001, although the court
advised the mother that it was “more interested in the . . . five or
six years” prior to the hearing in 2010. With respect to the mother’s
testimony concerning various verbal altercations between the parties,
we conclude that the court did not abuse its discretion in limiting
such testimony inasmuch as the court was well aware of the parties’
acrimonious relationship, which was evident during the two years of
proceedings prior to the hearing (see generally Matter of Cool v
Malone, 66 AD3d 1171, 1173). Any further testimony concerning the
parties’ acrimonious relationship would have been cumulative (see
Matter of Kubista v Kubista, 11 AD3d 743, 745).

     Finally, the mother failed to preserve for our review her further
contention that the court erred in failing to order a psychological or
social evaluation of the father inasmuch as she did not request such
an evaluation, and there is no indication in the record that the court
should have sua sponte ordered such an evaluation (see Matter of Henry
v Caye, 9 AD3d 878; see generally Matter of Tracy v Tracy, 309 AD2d
1252; Matter of Nunnery v Nunnery, 275 AD2d 986, 987).




Entered:   December 30, 2011                   Frances E. Cafarell
                                               Clerk of the Court
