Gerber v. Gerber

133 A.D.3d 1133, 21 N.Y.S.3d 386
Appellate Division of the Supreme Court of the State of New York·Decided November 25, 2015·Published·Cited by 6 cases

Opinion

Egan Jr., J.

Appeal from an order of the Family Court of Saratoga County (Jensen, J.), entered October 16, 2014, which, among other things, in two proceedings pursuant to Family Ct Act article 6, modified a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of three teenage boys (born between 1998 and 2002). By order entered June 13, 2011, the parties agreed (following four days of testimony) to share joint legal custody of the children with alternating physical custody. That agreement, however, proved to be short lived, and the father thereafter filed two violation petitions alleging that the mother, among other things, denied him access to the children during his parenting time and/or scheduled vacation periods and persuaded two of the boys to falsely claim that he had menaced them with a knife.1 In the interim, the mother filed a modification petition.

The mother thereafter commenced a divorce action, during the course of which the father requested modification of the prior custody order — asking that he be awarded “full custody.” The then-pending Family Court petitions were transferred to Justice Ferradino in Supreme Court and, after the parties resolved their various matrimonial issues, extensive testimony was adduced (reportedly over the course of IV2 years) relative to, among other things, the issue of custody. Justice Ferradino retired prior to the conclusion of that hearing, and these matters were reassigned to Justice Chauvin in Supreme Court. Although Justice Chauvin offered to read the hearing tran[1134] scripts and permit the parties to introduce additional testimony, the mother requested a de novo hearing,2 whereupon these matters were transferred to Family Court.3

Family Court scheduled an initial appearance for August 8, 2014, and there is no dispute that, prior thereto, the court notified the parties in writing of the need to personally appear on that date. Family Court further advised that a failure to appear by either party would result in the dismissal of his or her petition and required that any claimed inability to attend the scheduled conference be supported by the affidavit of a treating physician — a requirement purportedly necessitated due to the mother’s prior history in this regard. The mother failed to appear, and Family Court — deeming the affidavit tendered on the mother’s behalf to be inadequate — denied her request to appear electronically and dismissed her modification petition. Family Court set aside four days for a hearing on the father’s violation petitions and his request for a change in custody,4 scheduled a prehearing conference for September 29, 2014 and warned counsel that if the mother failed to physically appear on that date, the court would enter a default judgment against her. The mother thereafter failed to appear, at which point Family Court advised the parties that the matter would proceed to a hearing on October 10, 2014 — with or without the mother in attendance — and that the court was reserving the right to curtail the mother’s proof due to her repeated failures to appear as directed.

When the scheduled hearing date arrived, Family Court— based upon an affidavit submitted by the mother’s treating physician — agreed to allow the mother to appear by telephone. As a sanction for the mother’s prior failures to appear (and taking into account that the mother’s modification petition already had been dismissed), Family Court precluded the mother from offering her own witnesses; her counsel was, [1135] however, permitted to cross-examine the father’s witnesses. On the second day of the hearing (during the course of the father’s case-in-chief), Family Court modified this ruling to permit the mother to present evidence and rebuttal witnesses in response to the father’s proof. At the close of all proof and after conducting a Lincoln hearing, Family Court granted the father’s applications and, among other things, awarded the father sole legal and physical custody of the children and suspended all contact between the children and the mother for a period of six months, to be followed by therapeutic visitation. This appeal by the mother ensued.5

We affirm. As a threshold matter, we reject the mother’s assertion that she was denied a fair hearing. With respect to Family Court’s decision to curtail the mother’s proof, Family Court’s expectations of the mother — as well as the consequences of the mother’s failure to comply with the court’s directives— were clearly communicated in advance of (and at) the prehearing conferences. To that end, “Family Court is entitled to impose appropriate sanctions for uncooperative parents as long as the sanctions do not adversely affect the child’s right to have issues affecting his or her best interest fully explored” (Matter of Stukes v Ryan, 289 AD2d 623, 624 [2001]).

Here, in light of the mother’s documented failure to comply with Family Court’s directives and the fact that she no longer had a petition pending before the court, we cannot say that Family Court abused its discretion in limiting the mother’s participation at the hearing to the cross-examination of the father’s witnesses and the opportunity to call rebuttal witnesses (see Bean v Bean, 53 AD3d 718, 721 [2008]). Notably, although counsel initially indicated that the mother “would love to testify” on rebuttal, the record clearly reflects that the mother thereafter rested without doing so — despite having been available and afforded the opportunity to testify by telephone. Additionally, at the mother’s request, the parties stipulated that the July 2011 report authored by the mother’s expert witness would be received into evidence in lieu of his testimony; hence, she cannot now be heard to complain that this expert was unable to personally appear.6

Finally, having reviewed the record as a whole, we are not [1136] persuaded that Family Court’s decision to limit the mother’s proof deprived her of a fair hearing or otherwise impaired our ability to address and decide the issues raised on this appeal (compare Matter of Jeffrey JJ. v Stephanie KK., 88 AD3d 1083, 1084 [2011]; Matter of Middlemiss v Pratt, 86 AD3d 658, 659 [2011]; Matter of Williams v Williams, 35 AD3d 1098, 1099-1100 [2006]; Matter of Stukes v Ryan, 289 AD2d at 624).

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Gerber v. Gerber, 133 A.D.3d 1133, 21 N.Y.S.3d 386 (N.Y. Ct. App. 2015).

133 A.D.3d 1133 (Gerber v. Gerber) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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