DAVID WW v. LAUREEN QQ

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Docket Number

No. 500733.

Attorney(S)

G. Scott Walling, Law Guardian, Queensbury, appellant pro se. Edward D. Meyer, Plattsburgh, for David WW., appellant. Theodore J. Stein, Woodstock, for respondent. Omshanti Parnes, Law Guardian, Plattsburgh.

Judges

Kane, J.

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Smart Summary

Factual and Procedural Background

The parties are divorced parents of two sons, including the younger son, Jacob WW, born in 1991. A prior consent order established joint legal custody, with primary physical custody awarded to the respondent and visitation rights to the petitioner. The petitioner filed a custody modification petition citing concerns including Jacob's poor academic performance, his expressed desire to live with the petitioner, a strained relationship with respondent's husband, and an incident where the respondent's husband allegedly assaulted Jacob, leading to Jacob's removal by police and a mental health evaluation. The respondent filed a cross petition to modify visitation. At the hearing, after the petitioner presented eight witnesses and two of respondent's witnesses testified, the petitioner rested. The respondent moved for a directed verdict. The Family Court disregarded Jacob's testimony, finding him unreliable, and consequently determined that the petitioner failed to present a prima facie case, dismissing the petition. The court then granted the respondent sole legal custody of both children. Both Jacob's Law Guardian and the petitioner appealed.

Legal Issues Presented

Whether the Family Court erred in granting respondent's motion to dismiss the petition for custody modification at the close of petitioner's proof.
Whether the petitioner presented a prima facie case sufficient to require denial of the motion to dismiss and further proceedings on custody and visitation.

Arguments of the Parties

Petitioner's Arguments

Jacob was failing every class academically.
The respondent and members of her household demeaned the petitioner in Jacob's presence and interfered with Jacob's communication with petitioner.
The respondent failed to protect Jacob from his older brother.
The respondent's husband physically assaulted Jacob in the respondent's presence.
Jacob expressed a strong desire to live with the petitioner.
These facts constituted a change in circumstances warranting modification of custody in Jacob's best interests.

Respondent's Arguments

The respondent moved for a directed verdict, challenging the sufficiency and reliability of the petitioner's evidence, particularly disputing Jacob's testimony.
The Family Court accepted this position and dismissed the petition based on lack of a prima facie case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Kerwin v Kerwin, 39 AD3d 950, 951	Standard for deciding motion to dismiss at close of petitioner's proof: accept petitioner's evidence as true and resolve credibility issues in petitioner's favor.	The court held that the Family Court improperly disregarded this standard by discounting testimony and resolving credibility against petitioner at the dismissal stage.
Matter of Le Blanc v Morrison, 288 AD2d 768, 770	Requirement to present prima facie evidence of a change in circumstances and best interests to modify custody.	The court found petitioner did present sufficient prima facie evidence under this standard.
Calafiore v Kiley, 303 AD2d 816, 816-817	Supporting the standard of accepting petitioner's evidence as true on motion to dismiss.	Reinforced the principle that the Family Court erred in dismissing petitioner's case prematurely.
Redder v Redder, 17 AD3d 10, 13	Consideration of prior consent orders with less weight in custody modifications.	The court noted the prior consent order should be given less weight in light of changed circumstances.
Matter of Crippen v Keator, 9 AD3d 535, 536	Similar principle on diminished weight of prior consent orders in custody disputes.	Applied to emphasize that the prior order did not preclude modification based on new evidence.

Court's Reasoning and Analysis

The court emphasized that at the close of the petitioner's proof, the Family Court was required to accept all evidence presented by the petitioner as true and draw all reasonable inferences in petitioner's favor, including resolving credibility questions accordingly. The Family Court erred by disregarding Jacob's testimony and other evidence, thus improperly weighing credibility at a stage when it should not have done so. Accepting petitioner's evidence as true, the court found sufficient proof of changed circumstances—Jacob's academic failure, interference by respondent's household, physical assault by respondent's husband, and Jacob's expressed preference to live with petitioner—that justified a modification of custody in Jacob's best interests. The court also noted that the prior custody order, issued by consent, should be accorded less weight in light of these changed facts. Consequently, the Family Court's dismissal of the petition was improper, and further proceedings are warranted before a different judge.

Holding and Implications

The order of the Family Court dismissing the custody modification petition is reversed. The respondent's motion to dismiss is denied, and the matter is remitted to the Family Court of Clinton County for further proceedings consistent with this decision before a different judge.

The direct effect is that the petitioner’s custody modification petition will proceed to a full hearing. The court’s decision does not establish new precedent but reinforces existing standards regarding the evaluation of evidence and credibility at the dismissal stage in custody modification proceedings.

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In the Matter of DAVID WW, Appellant, v LAUREEN QQ., Respondent. G. SCOTT WALLING, as Law Guardian for JACOB WW, Appellant. (And Another Related Proceeding.).

Kane, J.

The parties are the divorced parents of two sons, the younger of whom is Jacob WW. (born in 1991). A prior consent order provided for joint legal custody, primary physical custody with respondent and visitation to petitioner. Petitioner filed a custody modification petition as a result of Jacob's unacceptable academic performance, his desire to live with petitioner, his poor relationship with respondent's husband, and an incident where respondent's husband allegedly assaulted Jacob and respondent had Jacob removed from the home by police and taken to the hospital for a mental health evaluation. Respondent filed a cross petition to modify visitation. At a hearing on the petitions, after petitioner presented eight witnesses and two of respondent's witnesses testified out of order, petitioner rested. Respondent moved for a directed verdict. Family Court disregarded Jacob's testimony and any testimony based on information received from him, determining that Jacob was not a reliable witness. Without this testimony, the court determined that petitioner failed to present a prima facie case and dismissed his petition. Respondent then rested. Family Court granted respondent sole legal custody of both children. Jacob's Law Guardian and petitioner appeal.

Because petitioner presented a prima facie case for modification of custody, Family Court should not have granted respondent's motion to dismiss the petition. When deciding a motion to dismiss at the close of a petitioner's proof, the court must accept the petitioner's evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner's favor ( see Matter of Kerwin v Kerwin, 39 AD3d 950, 951; Matter of he Blanc v Morrison, 288 AD2d 768, 770; see also Calafiore v Kiley, 303 AD2d 816, 816-817). Here, the court acknowledged that it was resolving credibility questions in a manner that would require it to disregard large portions of testimony offered on petitioner's case. In this way, the court did not adhere to the proper standard when considering the motion.

Accepting petitioner's proof as true, Jacob was failing every class, respondent and members of her household demeaned petitioner in Jacob's presence and interfered with Jacob's ability to communicate with him, respondent failed to protect Jacob from his older brother, respondent's husband physically assaulted Jacob in respondent's presence and Jacob strongly desired to live with petitioner. Considering this proof in the proper light, and giving less weight to the prior order as it was issued on consent ( see Redder v Redder, 17 AD3d 10, 13; Matter of Crippen v Keator, 9 AD3d 535, 536), Family Court should have denied respondent's motion to dismiss the petition because petitioner presented sufficient prima facie evidence of a change in circumstances and a need to modify custody to ensure Jacob's best interests ( see Matter of Le Blanc v Morrison, supra at 770). Accordingly, we remit for further proceedings on the custody and visitation petitions before a different judge.

Ordered that the order is reversed, on the law, without costs, respondent's motion to dismiss denied, and matter remitted to the Family Court of Clinton County for further proceedings not inconsistent with this Court's decision before a different judge.