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

584
CAF 10-01947
PRESENT: SCUDDER, P.J., SMITH, FAHEY, AND LINDLEY, JJ.


IN THE MATTER OF DIANE K. MASON-CRIMI,
PETITIONER-APPELLANT,

                    V                               MEMORANDUM AND ORDER

MICHAEL J. CRIMI, SR., RESPONDENT-RESPONDENT.
(APPEAL NO. 1.)


TIMOTHY R. LOVALLO, BUFFALO, FOR PETITIONER-APPELLANT.

RANDY S. MARGULIS, WILLIAMSVILLE, FOR RESPONDENT-RESPONDENT.

RONALD M. CINELLI, ATTORNEY FOR THE CHILD, BUFFALO, FOR MICHAEL J.C.,
JR.


     Appeal from an order of the   Family Court, Erie County (Debra L.
Givens, A.J.), entered September   14, 2010 in a proceeding pursuant to
Family Court Act article 6. The    order, among other things, denied the
petition to modify a prior order   of custody and visitation.

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

     Memorandum: Petitioner mother commenced the first of these
consolidated proceedings seeking to modify a prior order of custody
and visitation by awarding her sole custody of the parties’ child.
According to the mother, respondent father violated the prior order,
pursuant to which he had sole custody of the child, by interfering
with her visitation rights and restricting her telephone access to the
child. The mother further alleged that the child wished to live with
her. The mother commenced the second proceeding alleging that the
father wilfully violated the visitation and access provisions of the
prior order. Following an evidentiary hearing, Family Court slightly
modified the mother’s visitation schedule but denied her request for
sole custody of the child. With respect to the violation petition,
the court stated in its decision that the father “failed to provide
counseling for the child,” as required by the prior order, but that
such violation “is not a basis for a change in custody in this case,
rather it is the basis for a finding that [the father] did indeed
violat[e] that provision of the [prior o]rder.” The court added that
the father’s continued violation of the prior order in that regard
“would mitigate against his continued appropriateness as a custodial
parent.”
                                 -2-                           584
                                                         CAF 10-01947

     As limited by her brief in appeal No. 1, the mother appeals from
the order in the first proceeding insofar as it denied her request for
sole custody of the child. In appeal No. 2, the mother appeals from
the order in the second proceeding that did not indicate whether the
petition was granted but, rather, merely stated that the court’s
decision was incorporated therein.

     We reject the mother’s contention in appeal No. 1 that the
court’s determination to maintain custody with the father is against
the weight of the evidence. “It is well established that alteration
of an established custody arrangement will be ordered only upon a
showing of a change in circumstances [that] reflects a real need for
change to ensure the best interest[s] of the child” (Matter of Carey v
Windover, 85 AD3d 1574, 1574, lv denied 17 NY3d 710 [internal
quotation marks omitted]). Here, the evidence amply supports the
court’s determination that the mother failed to establish a change of
circumstances sufficient to warrant a modification of custody. There
is no merit to the mother’s contention in each appeal that the court
erred in failing to sanction the father for violating the counseling
provisions of the prior order. We note that neither petition filed by
the mother alleged that the father violated the prior order by failing
to arrange for counseling for the child. Instead, the petitions
alleged that the father violated the visitation and access provisions
of the prior order, and the court properly determined that the mother
failed to prove such violations. In addition, it is not clear from
the order in appeal No. 2 whether the court held the father in
contempt of court. Even assuming, arguendo, that the court determined
that the father had violated the order in a manner not alleged by the
mother, we conclude that the court did not improvidently exercise its
discretion in declining to sanction the father by fine or imprisonment
(see Kulhan v Courniotes, 209 AD2d 383, 384). “The court’s admonition
to [the father] was sufficient in this instance” (Matter of Palacz v
Palacz, 249 AD2d 930, 931, lv dismissed 92 NY2d 920).




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court
