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

201
CAF 14-01538
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF RICHARD C. KIRKPATRICK,
PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JESSICA LYNN KIRKPATRICK, RESPONDENT-APPELLANT.
-----------------------------------------------
IN THE MATTER OF JESSICA LYNN KIRKPATRICK,
PETITIONER-APPELLANT,

                    V

RICHARD C. KIRKPATRICK, RESPONDENT-RESPONDENT.


DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT AND PETITIONER-
APPELLANT.

LOVALLO & WILLIAMS, BUFFALO (TIMOTHY R. LOVALLO OF COUNSEL), FOR
PETITIONER-RESPONDENT AND RESPONDENT-RESPONDENT.

MICHELE A. BROWN, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered July 22, 2014 in proceedings pursuant to Family
Court Act article 6. The order, among other things, dismissed the
petition of Jessica Lynn Kirkpatrick and granted in part the petition
of Richard C. Kirkpatrick to modify a prior court order.

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

     Memorandum: In these proceedings under Family Court Act article
6, respondent-petitioner mother appeals from an order modifying the
existing visitation arrangement by directing that she have supervised
visitation with the parties’ child and dismissing her petition for
petitioner-respondent father’s violation of a prior order. The
mother’s contention that Family Court erred in issuing a temporary
order suspending visitation pending trial is rendered moot by the
court’s issuance of a final order of visitation (see generally Matter
of Viscuso v Viscuso, 129 AD3d 1679, 1682; Matter of Jones v Tucker,
125 AD3d 1273, 1273).

     Contrary to the mother’s further contention, the court did not
err in admitting testimony concerning the child’s out-of-court
                                 -2-                           201
                                                         CAF 14-01538

statements under the excited utterance exception to the hearsay rule
(see People v Miller, 115 AD3d 1302, 1303-1304, lv denied 23 NY3d
1040; see generally People v Caviness, 38 NY2d 227, 230-232). In any
event, any error in admitting the statements is harmless, inasmuch as
there is “a sound and substantial basis in the record for . . . Family
Court’s determination, without consideration of the statements, that
it was not in the [child’s] best interests to have unsupervised
contact with [her] mother” (Matter of Lane v Lane, 68 AD3d 995, 998).
Here, the father established that the relationship between the child
and the mother had deteriorated significantly since the last order
allowing the mother unsupervised visitation, to the point where the
child no longer wanted to have visitation with the mother.

     Furthermore, even assuming, arguendo, that the court erred in
admitting the mother’s medical records, we note that the court did not
rely on the records in its decision, and “there is a sound and
substantial basis in the record for the court’s determination to order
supervised visitation” (Matter of Rice v Cole, 125 AD3d 1466, 1467, lv
denied 26 NY3d 909). Finally, the court did not abuse its discretion
in failing to impose sanctions for the father’s violation of the 2012
order and in dismissing the mother’s contempt petition (see generally
Matter of Anderson v Barlow, 256 AD2d 1234, 1235).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
