                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 7, 2016                    520151
________________________________

In the Matter of JILLIAN R.
   CARR,
                    Appellant,
      v

KANE A. STEBBINS,
                     Respondent.

(Proceeding No. 1.)                          MEMORANDUM AND ORDER
________________________________

In the Matter of KANE A.
   STEBBINS,
                    Respondent,
      v

JILLIAN R. CARR,
                     Appellant.

(Proceeding No. 2.)
________________________________

Calendar Date:   November 19, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr., Lynch and
          Devine, JJ.

                              __________


     Abbie Goldbas, Utica, for appellant.

      Kane A. Stebbins, Lawrenceville, Pennsylvania, respondent
pro se.

     Pamela Doyle Gee, Big Flats, attorney for the child.

                              __________
                              -2-                520151

Devine, J.

      Appeal from an order of the Family Court of Chemung County
(Rich Jr., J.), entered October 28, 2014, which, among other
things, granted petitioner's application, in proceeding No. 2
pursuant to Family Ct Act article 6, to modify a prior order of
visitation.

      Jillian R. Carr (hereinafter the mother) and Kane A.
Stebbins (hereinafter the father) are the parents of a son born
in 2011. A 2012 order granted joint custody and primary
placement with the mother and allowed the father to have
visitation on two weeknights and for six hours on Saturday
(Matter of Carr v Stebbins, 123 AD3d 1164, 1164 [2014]). The
mother filed a petition in July 2013 seeking to modify the order
and reduce the amount of visitation, citing inconsistencies in
the father's exercise of ordered visitation. The father
responded in February 2014 with an application to permit
overnight visitation. Family Court issued a temporary order that
permitted the father to exercise overnight visitation on
alternate weekends. A trial ensued and, at the close of the
mother's proof, Family Court granted the father's motion to
dismiss her modification petition. Further proof was presented
on the father's petition and, after the trial ended, Family Court
modified the terms of the order to allow overnight visitation on
alternate weekends and to establish a holiday visitation
schedule. The mother now appeals.

      We affirm. In order to obtain modification of an existing
visitation arrangement, "a party must demonstrate a change in
circumstances that necessitates a modification to ensure the best
interests of the child[]" (Matter of Sparbanie v Redder, 130 AD3d
1172, 1172 [2015]; see Matter of D'Angelo v Lopez, 94 AD3d 1261,
1262 [2012]). Family Court failed to explicitly find that a
sufficient change in circumstances had occurred, but "our
independent review" of the record allows us to make that finding
(Matter of D'Angelo v Lopez, 94 AD3d at 1262). The record shows,
among other things, that the father has a variable work schedule
that has disrupted his weeknight visitation, and the parties have
been unable to meaningfully communicate to resolve that problem.
In our view, the foregoing constituted a sufficient change in
                              -3-                520151

circumstances to assess whether modification of the order would
be in the best interests of the child (see Matter of Bjork v
Bjork, 58 AD3d 951, 953 [2009], lv denied 12 NY3d 708 [2009]).

      As for the best interests issue, the father presented
testimony showing that he enjoys a good relationship with the
child and that the overnight visits directed in the temporary
order had gone well, a point confirmed by the attorney for the
child. The father gave no reason to be concerned as to the
living arrangements at his residence, indicating that he recently
moved to a nearby home in Pennsylvania with his girlfriend and
their son and that the child has his own bed in a room he shares
with his half brother. The father further indicated that, aside
from allowing him to enjoy more uninterrupted time with the
child, weekend visitation would allow the child to develop a
relationship with his half sisters, who also visit every other
weekend. The attorneys for the child before Family Court and
upon this appeal have also argued that an award of overnight
weekend visitation is appropriate. The mother disagreed and
painted a starkly different portrait of the interactions between
the father and the child, but Family Court declined to give any
weight to her unsubstantiated allegations, and we will accord due
deference to its assessment of credibility (see Matter of Jelenic
v Jelenic, 262 AD2d 676, 677-678 [1999]). Thus, a sound and
substantial basis in the record supports the modification in the
terms of visitation between the father and the child (see Matter
of Swett v Balcom, 64 AD3d 934, 934 [2009], lv denied 13 NY3d 710
[2009]; compare Matter of Klee v Schill, 95 AD3d 1599, 1600-1602
[2012]).

      The remaining contentions of the mother are unpreserved for
our review and, in any event, to the extent that they have any
merit, constitute nothing more than harmless error (see Matter of
Jones v Moore, 129 AD3d 1400, 1402 [2015]; Matter of Andracchi v
Reetz, 106 AD3d 734, 734-735 [2013], lv denied 21 NY3d 866
[2013]).

     Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur.
                        -4-                  520151

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
