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

203
CAF 15-01632
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF MEREDITH GORTON,
PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

JEREMY V. INMAN, RESPONDENT-APPELLANT.


PAUL A. NORTON, CLINTON, FOR RESPONDENT-APPELLANT.

LEVITT & GORDON, NEW HARTFORD (DEAN L. GORDON OF COUNSEL), FOR
PETITIONER-RESPONDENT.

JULIE GIRUZZI-MOSCA, ATTORNEY FOR THE CHILD, UTICA.


     Appeal from an order of the Family Court, Oneida County (Joan E.
Shkane, J.), entered June 24, 2015 in a proceeding pursuant to Family
Court Act article 6. The order, inter alia, granted sole custody of
the subject child to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part of the third
ordering paragraph setting an alternate weekend visitation schedule
and reinstating the visitation schedule as set forth in the third
ordering paragraph of the amended order entered May 27, 2014, and
vacating the eighth ordering paragraph, and as modified the order is
affirmed without costs.

     Memorandum: Petitioner mother filed a petition alleging that
respondent father violated an amended order entered on consent on May
27, 2014, and seeking a modification of that amended order from joint
custody to sole custody. The amended order, inter alia, granted the
parties joint custody of their child, physical placement with the
mother, and visitation to the father, including weekly visits on
Thursday evenings, alternate weekends, and various holidays. The
amended order specifically provided that the commencement of the
weekend visits would alternate between Friday evening and Saturday
morning. The amended order further provided that, for the year 2014,
the child would be with the mother from 2:00 p.m. on Thanksgiving Day
through the weekend, and that holiday visits took precedence over the
visitation schedule. The mother’s petition alleged that the father
failed to exercise several Friday night visits from June through
October, 2014, that he refused to return the child at 2:00 p.m. on
Thanksgiving Day and instead kept him until 6:00 p.m. on the following
Sunday, and that he threatened to disparage the mother to their child.
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                                                         CAF 15-01632

The mother also alleged that she and the father were unable to
communicate regarding the best interests of the child and therefore
sought modification of the amended order. The mother sought an award
of sole custody and attorney’s fees; however, she did not seek a
reduced visitation schedule. Following a hearing, Family Court
credited the mother’s testimony and determined that the father
wilfully violated the amended order and that the mother established a
change of circumstances warranting a determination that the best
interests of the child would be served by an award of sole custody to
the mother. The court also reduced the father’s visitation by
eliminating the Friday night visits and Thursday evening visits and
conditioned the father’s filing of any future modification petition on
his completion of anger management and parenting classes.

     We conclude that the father’s contention that the court erred in
imposing a temporary order of supervised visitation pending the
decision “is rendered moot by the court’s issuance of a final order of
visitation” (Matter of Kirkpatrick v Kirkpatrick, 137 AD3d 1695,
1696). We agree with the father, however, that the court erred in
conditioning his right to petition the court upon the completion of
anger management and parenting classes, and we modify the order by
vacating that ordering paragraph (see Matter of Ordona v Cothern, 126
AD3d 1544, 1546). We also agree with the father that the record does
not support the court’s determination that it is in the best interests
of the child to eliminate the Thursday evening and Friday night
visitation periods (see Matter of Roody v Charles, 283 AD2d 945, 946).
There was no testimony that there were any problems regarding the
Thursday visits. The mother admitted that she and the father disputed
which weekend visits were to commence on Friday and which were to
commence on Saturday, but it appears from the record that the parties
had resolved that issue prior to the hearing. Thus, we conclude that
the court abused its discretion in eliminating those periods of
visitation (cf. Matter of VanDusen v Riggs, 77 AD3d 1355, 1356). We
therefore further modify the order by reinstating the schedule set
forth in the third ordering paragraph of the amended order entered on
May 27, 2014.

     We reject the father’s contention that the court erred in
determining that the mother established a change of circumstances
warranting a review of the amended order with respect to custody, and
further erred in determining that it was in the best interests of the
child to award the mother sole custody (see Matter of Moore v Moore,
78 AD3d 1630, 1631, lv denied 16 NY3d 704). The court credited the
mother’s testimony that the father would yell and swear at her on the
telephone and that she therefore communicated with him only through
text messages, and the text messages admitted in evidence support the
court’s determination that, in light of the acrimonious relationship
between the parties, the existing joint custody arrangement was
inappropriate. The court’s determination is entitled to great
deference (see Matter of Daila W. [Danielle W.–Daniel P.], 133 AD3d
1353, 1354), and we conclude that it is supported by a sound and
substantial basis in the record (see Ingersoll v Platt, 72 AD3d 1560,
1560-1561).
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                                                         CAF 15-01632

     Finally, the father contends that the court erred in awarding the
mother attorney’s fees. Although the order directs the mother’s
attorney to submit an application for attorney’s fees by a specific
date, there is nothing in the record establishing that the court
awarded attorney’s fees. Because the father submitted the appeal on
an incomplete record, he must suffer the consequences of our inability
to review that contention (see Matter of Christopher D.S. [Richard
E.S.], 136 AD3d 1285, 1286-1287; Matter of Santoshia L., 202 AD2d
1027, 1028).




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
