         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1224
CAF 10-01236
PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF MARIA ORAVEC,
PETITIONER-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DAVID A. ORAVEC,
RESPONDENT-PETITIONER-RESPONDENT.


PATRICIA M. MCGRATH, LOCKPORT, FOR PETITIONER-RESPONDENT-APPELLANT.

DEBORAH J. SCINTA, ATTORNEY FOR THE CHILDREN, KENMORE, FOR DYLAN O.
AND OLIVIA O.


     Appeal from an order of the Family Court, Niagara County (John F.
Batt, J.), entered April 12, 2010. The order, among other things,
awarded sole custody of the subject children to respondent-petitioner
David A. Oravec.

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

     Memorandum: Petitioner-respondent mother contends on appeal that
Family Court should have granted her petition alleging that
respondent-petitioner father violated a prior order of custody with
respect to the parties’ children. The mother further contends that
the court should have granted her petition seeking to modify the prior
order by, inter alia, awarding her sole custody of the children and
erred in granting the father’s petition seeking to modify the prior
order by, inter alia, awarding him sole custody of the children. We
affirm.

     The court properly dismissed the violation petition inasmuch as
the mother failed to establish that the father willfully violated a
clear mandate of the prior order or that his conduct “ ‘defeated,
impaired, impeded, or prejudiced’ ” any right or remedy to which she
was entitled (Matter of Petkovsek v Snyder [appeal No. 2], 251 AD2d
1085; see Matter of Maurice H. v Charity C., 49 AD3d 1248). Contrary
to the mother’s contention concerning the custody determination, we
conclude that the court properly considered, as one factor in its
determination, “the support that [the father’s parents] give[] to him
and the children, which contributes further stability and emotional
comfort to the children’s lives” (Matter of Flynn-Stallmer v Stallmer,
167 AD2d 575, 577, lv dismissed 77 NY2d 939). The mother failed to
preserve for our review her further contention that the court erred in
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                                                        CAF 10-01236

interjecting itself into the hearing by questioning her concerning
matters that had not been addressed on direct or cross-examination
(see generally People v Charleston, 56 NY2d 886, 887-888; Matter of
Aron B., 46 AD3d 1431; Chocolas Assoc. Ltd. Partnership v Handelsman,
262 AD2d 133). The mother also failed to preserve for our review her
contention that the court erred in admitting in evidence the custody
evaluation report on the ground that it contained hearsay (see Matter
of Timosa v Chase, 21 AD3d 1115).




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
