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

1066
CA 14-01620
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


LISA M. PANARO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PASCAL S. PANARO, JR., DEFENDANT-APPELLANT.


LEONARD G. TILNEY, JR., LOCKPORT, FOR DEFENDANT-APPELLANT.

JUSTIN S. WHITE, WILLIAMSVILLE, FOR PLAINTIFF-RESPONDENT.

PAMELA THIBODEAU, ATTORNEY FOR THE CHILDREN, WILLIAMSVILLE.


     Appeal from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered June 10, 2014 in a divorce action. The order,
insofar as appealed from, granted defendant visitation with the
parties’ children from Wednesday evening through Friday morning and on
alternate weekends.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the second and third
ordering paragraphs are vacated, and the matter is remitted to Supreme
Court, Erie County, for further proceedings in accordance with the
following memorandum: Defendant father appeals from an order that,
inter alia, modified a judgment of divorce by setting forth a new
schedule for the father’s visitation with the parties’ children.
Contrary to the father’s contention, Supreme Court’s determination did
not improperly exceed the scope of the relief requested by the
parties. The record establishes that plaintiff mother submitted a
motion and the father submitted a cross motion in which they
requested, inter alia, modification of the visitation schedule set
forth in the judgment of divorce. Moreover, the record further
establishes that the parties and the Attorney for the Children entered
into a stipulation whereby the court would fashion a new visitation
schedule based upon the parties’ written submissions. Consequently,
we conclude that “[the father] had adequate notice that [the
visitation schedule] was at issue[,] and [that he] was not prejudiced
by the action of the court” (Matter of Heintz v Heintz, 28 AD3d 1154,
1155; see Matter of Bow v Bow, 117 AD3d 1542, 1543; cf. Matter of
Myers v Markey, 74 AD3d 1344, 1345).

     We further conclude that the father waived his contention that
the mother failed to establish a change of circumstances warranting
review of the judgment inasmuch as the father stipulated that the
court could fashion a new visitation schedule (see generally Matter of
                                 -2-                          1066
                                                         CA 14-01620

James Jerome C. v Mary Elizabeth J., 31 AD3d 1184, 1184-1185).


     We agree with the father, however, that the adjusted visitation
schedule was not in the best interests of the children because it
conflicts with the father’s work schedule and thus will prevent the
father from exercising his visitation rights (see generally Matter of
Vasquez v Barfield, 81 AD3d 1398, 1399; Matter of Wendy Q. v Richard
Q., 36 AD3d 1000, 1001). We therefore reverse the order insofar as
appealed from, and we remit the matter to Supreme Court to fashion a
visitation schedule that provides the same amount of parenting time
for each parent as set forth in the order on appeal but does not
conflict with either parent’s work schedule.




Entered:   November 20, 2015                   Frances E. Cafarell
                                               Clerk of the Court
