Ostrander v. Ostrander

Appellate Division of the Supreme Court of New York

Ostrander v. Ostrander

280 A.D.2d 793, 720 N.Y.S.2d 635, 2001 N.Y. App. Div. LEXIS 1442

Appellate Division of the Supreme Court of the State of New York·Decided February 8, 2001·Published·Cited by 7 cases

Opinion

—Rose, J.

Appeal from an order of the Family Court of Delaware County (Estes, J.), entered March 3, 2000, which denied petitioner’s application, in a proceeding pursuant to Family Court Act article 6, to modify a prior order of custody.

On this appeal from the denial of petitioner’s application to modify a prior order granting custody of the parties’ children to respondent, petitioner’s only claim is that Family Court erred in curtailing her counsel’s direct examination of respondent. During the course of that direct examination, petitioner’s counsel asked several leading questions regarding the children’s possession of a gun and Family Court sustained the objections of respondent’s counsel. While an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions (see, Becker v Koch, 104 NY 394, 400-401), whether to permit such questions over objection is a matter which rests in the discretion of the trial court (see, Jordan v Parrinello, 144 AD2d 540, 541; Prince, Richardson on Evidence § 6-228, at 374 [Farrell 11th ed]).

The record discloses that respondent was neither reluctant nor evasive in answering questions posed during direct examination, including several questions regarding the children and guns. When the objections to the leading questions were sustained, petitioner’s counsel made no effort to elicit the infor[794]*794mation through questions which were not leading and petitioner does not claim that such questions were not feasible or that their use would have been frustrated by respondent’s hostility as an adverse party. In these circumstances, and considering the lack of evidence to support petitioner’s application for a change in custody, we see no reversible error in Family Court’s ruling.

Mercure, J. P., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.

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—Rose, J.

Appeal from an order of the Family Court of Delaware County (Estes, J.), entered March 3, 2000, which denied petitioner’s application, in a proceeding pursuant to Family Court Act article 6, to modify a prior order of custody.

On this appeal from the denial of petitioner’s application to modify a prior order granting custody of the parties’ children to respondent, petitioner’s only claim is that Family Court erred in curtailing her counsel’s direct examination of respondent. During the course of that direct examination, petitioner’s counsel asked several leading questions regarding the children’s possession of a gun and Family Court sustained the objections of respondent’s counsel. While an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions (see, Becker v Koch, 104 NY 394, 400-401), whether to permit such questions over objection is a matter which rests in the discretion of the trial court (see, Jordan v Parrinello, 144 AD2d 540, 541; Prince, Richardson on Evidence § 6-228, at 374 [Farrell 11th ed]).

The record discloses that respondent was neither reluctant nor evasive in answering questions posed during direct examination, including several questions regarding the children and guns. When the objections to the leading questions were sustained, petitioner’s counsel made no effort to elicit the infor[794]*794mation through questions which were not leading and petitioner does not claim that such questions were not feasible or that their use would have been frustrated by respondent’s hostility as an adverse party. In these circumstances, and considering the lack of evidence to support petitioner’s application for a change in custody, we see no reversible error in Family Court’s ruling.

Mercure, J. P., Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.

Ostrander v. Ostrander, 280 A.D.2d 793, 720 N.Y.S.2d 635, 2001 N.Y. App. Div. LEXIS 1442 (N.Y. Ct. App. 2001).

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280 A.D.2d 793 (Ostrander v. Ostrander) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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