IN RE: Rose M. CHASE (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the second ordering paragraph and substituting therefor the language in the first ordering paragraph of the order of Family Court, Ontario County, entered on May 26, 2015, and as modified the order is affirmed without costs.

Memorandum:  In these proceedings pursuant to Family Court Act article 6, Rose M. Chase (mother), a respondent in appeal Nos. 1 and 2 and the petitioner in appeal No. 3, appeals from three orders.  In the order in appeal No. 1, Family Court, inter alia, granted the petition of petitioner Jessica Chase, the subject child's paternal aunt, seeking joint custody of the child.  In the order in appeal No. 2, the court, inter alia, granted the petition of petitioner Attorney for the Child (AFC) seeking to modify the prior order of custody and visitation (prior order) by reducing the visitation of respondent Patricia A. Mooney–Tirao, the child's maternal grandmother, to one supervised visit per month with the child.  In the order in appeal No. 3, the court, among other things, summarily dismissed the mother's petition seeking modification of the prior order by, inter alia, allowing her to communicate with the child.

We note that the mother is currently incarcerated on her conviction of murder in the second degree for killing the child's father (see People v. Chase, 158 A.D.3d 1233, 71 N.Y.S.3d 293 [4th Dept. 2018], lv denied 31 N.Y.3d 1080, 79 N.Y.S.3d 101, 103 N.E.3d 1248 [2018] ), and her access to the child consists only of receiving the child's report cards and his photographs from school and extracurricular activities.  Thus, the orders in appeal Nos. 1 and 2 did not alter the mother's circumstances or “otherwise affect[ her] legal rights or direct interests” (Matter of Cheryle HH. v. Benjamin II., 174 A.D.3d 983, 984, 101 N.Y.S.3d 687 [3d Dept. 2019] ), and we therefore dismiss those appeals inasmuch as she is not aggrieved by those orders (see CPLR 5511;  Cheryle HH., 174 A.D.3d at 984, 101 N.Y.S.3d 687;  Matter of Johnson v. Jimerson, 171 A.D.3d 1498, 1499, 97 N.Y.S.3d 549 [4th Dept. 2019] ).

Contrary to the mother's contention in appeal No. 3, the court properly dismissed her modification petition without a hearing.  “A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order ․ and, here, the [mother] failed to make a sufficient evidentiary showing of a change in circumstances to require a hearing” (Matter of Gworek v. Gworek [appeal No. 1], 158 A.D.3d 1304, 1304, 68 N.Y.S.3d 365 [4th Dept. 2018] [internal quotation marks omitted];  see Matter of Noble v. Paris, 143 A.D.3d 1288, 1288–1289, 38 N.Y.S.3d 503 [4th Dept. 2016], lv denied 29 N.Y.3d 904, 57 N.Y.S.3d 708, 80 N.E.3d 401 [2017] ).  Moreover, the mother failed to set forth allegations rebutting the presumption in Domestic Relations Law § 240(1–c) that visitation is not in the child's best interests (see Matter of Pajek v. Feketi, 170 A.D.3d 1625, 1626, 96 N.Y.S.3d 801 [4th Dept. 2019] ).

We agree with the mother, however, that there is a conflict between the order in appeal No. 3 and the court's oral decision.  In its decision, the court directed that the provisions in an order entered on May 26, 2015 regarding the mother's access to the child's report cards and his photographs from school and extracurricular activities, which the mother was to receive via the AFC, “will continue.”  In the order in appeal No. 3, however, the court ordered that the mother “shall continue to receive an annual school picture of the child ․, as well as a copy of his report card, with said items to [be] provided directly from the child's school.”  Thus, the order in appeal No. 3 altered the materials to which the mother is entitled and the method by which she is to receive those materials, and it must therefore be modified to conform with the May 26, 2015 order (see Matter of Esposito v. Magill, 140 A.D.3d 1772, 1773, 32 N.Y.S.3d 802 [4th Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6209084 [2016] ).