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

30
CAF 11-01212
PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ.


IN THE MATTER OF AMBER MURPHY,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BRIAN WELLS, RESPONDENT-APPELLANT.


PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-APPELLANT.

WILLIAM M. BORRILL, NEW HARTFORD (JEFFREY T. LOTTERMOSER, JR., OF
COUNSEL), FOR PETITIONER-RESPONDENT.

PAUL SKAVINA, ATTORNEY FOR THE CHILDREN, ROME, FOR BRENNAN W. AND
ALEXANDER W.


     Appeal from an order of the Family Court, Oneida County (Brian M.
Miga, J.H.O.), entered April 1, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, modified a prior
custody order.

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

     Memorandum: Respondent father appeals from an order that, inter
alia, modified a prior joint custody order entered on the parties’
consent (prior order) by awarding primary physical custody of the
parties’ children to petitioner mother and granting her all decision-
making authority with respect to the children’s health, education and
welfare. The prior order provided that either parent could seek
modification of the custody and visitation provisions of that order
without first demonstrating a change in circumstances. Despite that
provision, the father contends on appeal that the Judicial Hearing
Officer (JHO) failed to make the requisite findings regarding a change
in circumstances, and that the mother failed to establish that there
had been a change in circumstances that would warrant a review of the
existing custody arrangement. Even assuming, arguendo, that a showing
of changed circumstances must be made notwithstanding the contrary
language in the prior order (see Matter of Schattinger v Schattinger,
256 AD2d 1209, 1210, appeal dismissed 93 NY2d 919), we conclude that
the mother established the requisite change in circumstances.

     “ ‘[A] change in circumstances may be demonstrated by, inter
alia, . . . interference with the noncustodial parent’s visitation
rights and/or telephone access’ ” (Goldstein v Goldstein, 68 AD3d 717,
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                                                         CAF 11-01212

720), and the record here establishes that the father interfered with
the children’s telephone communications with the mother. Furthermore,
a change in circumstances exists where, as here, the parents’
relationship becomes so strained and acrimonious that communication
between them is impossible (see Matter of O’Loughlin v Sweetland, 98
AD3d 983, 984; Matter of Spiewak v Ackerman, 88 AD3d 1191, 1192;
Matter of Ingersoll v Platt, 72 AD3d 1560, 1561). We further conclude
that, “ ‘[a]lthough [the JHO] did not specifically state that [he]
found a sufficient change in circumstances, . . . the record reveals
extensive findings of fact, placed on the record by [the JHO], which
demonstrate unequivocally that a significant change in circumstances
occurred since the entry of the [prior] order’ ” (Matter of Pauline E.
v Renelder P., 37 AD3d 1145, 1146; see Matter of Bedard v Baker, 40
AD3d 1164, 1165).

     We have considered the father’s remaining contention and conclude
that it is without merit.




Entered:   February 1, 2013                    Frances E. Cafarell
                                               Clerk of the Court
