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

147
CAF 14-02133
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF DANIEL T. HILL,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

VICKI L. TROJNOR, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


MAUREEN N. POLEN, ROCHESTER, FOR RESPONDENT-APPELLANT.

JAMES A. LEONE, ATTORNEY FOR THE CHILD, AUBURN.

LISA A. BLAIR, ATTORNEY FOR THE CHILD, AUBURN.


     Appeal from an order of the Family Court, Cayuga County (Mark H.
Fandrich, A.J.), entered September 15, 2014 in a proceeding pursuant
to Family Court Act article 8. The order granted an order of
protection against respondent.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed as a matter of discretion in the interest of
justice and on the law without costs and the petition is dismissed.

     Memorandum: In appeal No. 1, respondent mother appeals from a
two-year order of protection issued pursuant to Family Court Act
article 8. The mother correctly concedes that her challenges to the
order are not preserved for our review (see CPLR 4017), but we
exercise our power to review those challenges as a matter of
discretion in the interest of justice (see generally Matter of
Commissioner of Social Servs. v Turner, 99 AD3d 1244, 1245). We agree
with the mother that Family Court erred in issuing an order of
protection without adhering to the procedural requirements of Family
Court Act § 154-c (3) (see Matter of Daniel W. v Kimberly W., 135 AD3d
1000, 1002), inasmuch as the court did not make a finding of fact that
petitioner father was entitled to an order of protection based upon “a
judicial finding of fact, judicial acceptance of an admission by [the
mother] or judicial finding that the [mother] has given knowing,
intelligent and voluntary consent to its issuance” (§ 154-c [3] [ii];
see Daniel W., 135 AD3d at 1002). On the merits, moreover, the
evidence was insufficient to establish any of the family offenses
alleged in the petition, and thus the petition should have been
dismissed on that ground (see Matter of Tauriello v Thompson, 84 AD3d
824, 825; Matter of London v Blazer, 2 AD3d 860, 861).
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                                                         CAF 14-02133

     In appeal No. 2, the mother appeals from an order granting the
father’s amended petition to modify the custody and visitation
provisions of the divorce judgment and subsequent order of custody and
visitation. Contrary to the mother’s contention, we conclude that
there is a sound and substantial basis in the record for the court’s
determination that there had been “a change in circumstances which
reflects a real need for change to ensure the best interest[s] of the
child[ren]” (Matter of Chrysler v Fabian, 66 AD3d 1446, 1447, lv
denied 13 NY3d 715 [internal quotation marks omitted]). At a minimum,
the evidence concerning the parties’ acrimonious relationship
established that joint custody was no longer appropriate (see Matter
of Betro v Carbone, 50 AD3d 1583, 1584). In addition, evidence of the
mother’s efforts to alienate the children from the father and her
unstable and erratic behavior support the award of physical custody to
the father (see generally Sheridan v Sheridan, 129 AD3d 1567, 1568).




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
