                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: December 29, 2016                     522351
____________________________________

In the Matter of CRAIG C.
   ABRAM,
                    Appellant,
      v
                                              MEMORANDUM AND ORDER
MICHELLE A. ABRAM,
                      Respondent.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   November 17, 2016

Before:   Peters, P.J., Garry, Devine, Mulvey and Aarons, JJ.

                               __________


     Sandra M. Colatosti, Albany, for appellant.

     Jeffrey Berkun, Albany, for respondent.

     Kim Lawyer, Delmar, attorney for the child.

                               __________


Devine, J.

      Appeal from an order of the Family Court of Albany County
(Maney, J.), entered November 4, 2015, which, in three
proceedings pursuant to Family Ct Act article 6, dismissed the
petitions at the close of petitioner's proof.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the divorced parents of a son (born
in 2005). The mother has legal and physical custody of the child
and, pursuant to a July 2014 order, the father was awarded
parenting time to be supervised by one of three named individuals
or any person "mutually agreed upon" by the parties. The 2014
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order further allowed the child to contact the father by
telephone if the child chose to do so.

      In January 2015, the father petitioned to modify the 2014
order to allow unsupervised visitation and other relief. Family
Court issued a temporary order in April 2015 that awarded
supervised visitation every Tuesday evening and directed
"reasonable telephone contact" between the father and the child.
The father then filed a petition alleging that the mother had
willfully violated the 2014 order and temporary order, as well as
one seeking modification of the temporary order. Family Court
conducted a hearing on the petitions and, at the close of the
father's proof, granted the mother's motion to dismiss them. The
father now appeals.

      With regard to the modification petitions, the father "was
required to establish a change in circumstances warranting an
inquiry into whether the best interests of the child[] would be
served by modifying the existing" visitation arrangement (Matter
of Caswell v Caswell, 134 AD3d 1175, 1176 [2015]; see Matter of
Mary BB. v George CC., 141 AD3d 759, 760 [2016]). With regard to
the violation petition, the father "was obliged to establish that
there was a lawful court order in effect with a clear and
unequivocal mandate, that the [mother] had actual knowledge of
the conditions of that order, and that [her] actions or failure
to act defeated, impaired, impeded or prejudiced a right of the
[father]" (Matter of Prefario v Gladhill, 140 AD3d 1235, 1236
[2016] [internal quotation marks and citations omitted];
see Matter of Eller v Eller, 134 AD3d 1319, 1320 [2015]). In
either case, inasmuch as the father's petitions were resolved in
the context of the mother's motion to dismiss, Family Court had
to accept the father's evidence as true, afford him the benefit
of any favorable inference and resolve all credibility questions
in his favor (see Matter of Mary BB. v George CC., 141 AD3d at
760; Matter of John SS. v Amy SS., 61 AD3d 1305, 1306 [2009]).

      The father testified that his failure to fully take
advantage of the supervised parenting time available to him
stemmed from problems in arranging for supervisors. Most of
those problems were not the fault of the mother but, that being
said, the father testified that he proposed a new supervisor and
                              -3-                522351

that, despite numerous attempts, the mother refused to
communicate with that person. The father further testified that
the mother refused to facilitate telephone communication between
him and the child and placed the calls on speaker phone when they
did occur. Accepting the foregoing proof as true and making all
inferences in the father's favor, it revealed a relationship
between the parties that had deteriorated enough to impair the
father's contact with the child and, as such, indicated a change
in circumstances sufficient to warrant revisiting the terms of
the order (see Matter of Parchinsky v Parchinsky, 114 AD3d 1040,
1041 [2014]; Matter of Betancourt v Boughton, 204 AD2d 804, 806-
807 [1994]; cf. Matter of Chase v Benjamin, 44 AD3d 1130, 1131-
1132 [2007]). The mother's motion to dismiss the modification
petitions should therefore have been denied and remittal is
necessary for further proceedings on them (see Matter of Mary BB.
v George CC., 141 AD3d at 761).

      Family Court did, however, properly dismiss the violation
petition. The father claims on appeal that the mother "did not
put a great deal of effort into" arranging the parenting time
contemplated by the 2014 and temporary orders. The mother is not
directed by either order to take specific steps in that regard
and the father provided nothing to suggest that she willfully
violated a "clear and unequivocal mandate" of them (Matter of
Prefario v Gladhill, 140 AD3d at 1236; see Matter of Miller v
Miller, 77 AD3d 1064, 1065-1066 [2010], lv dismissed and denied
16 NY3d 737 [2011]).

     Peters, P.J., Garry, Mulvey and Aarons, JJ., concur.
                              -4-                  522351

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as dismissed petitioner's
modification petitions; matter remitted to the Family Court of
Albany County for further proceedings not inconsistent with this
Court's decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
