| Gulbin v Moss-Gulbin |
| 2007 NY Slip Op 09477 [45 AD3d 1230] |
| November 29, 2007 |
| Appellate Division, Third Department |
| Richard C. Gulbin, Respondent, v Cheryl L. Moss-Gulbin,Appellant. |
—[*1] Levene, Gouldin & Thompson, Binghamton (Bruno Colapietro of counsel), for respondent. Carman M. Garufi, Law Guardian, Binghamton.
Mugglin, J. Appeal from a judgment of the Supreme Court (Relihan, Jr., J.), entered August15, 2006 in Broome County, ordering, among other things, equitable distribution of the parties'marital property, upon a decision of the court.
On this appeal, defendant asserts that Supreme Court erred in three respects: (1) by awardingplaintiff joint custody of her son from a previous relationship; (2) by crediting plaintiff with therepayment of loans to his retirement account and to his parents in determining equitabledistribution; and (3) by awarding her an inadequate sum ($2,000) for counsel fees. In sum, weagree with defendant's first argument, disagree with her second assertion and find no record basisto disturb the award of counsel fees.
When the parties married, defendant was already the biological mother of two sons, one ofwhom is now emancipated. The parties are the biological parents of two more sons. SupremeCourt, in reliance upon a long-standing parent/child relationship between plaintiff anddefendant's second son, awarded joint custody to the parties with the children's principalresidence being with defendant, subject to scheduled visitation rights for plaintiff.[*2]
As a general rule, it is clear that a parent's right to custodyis superior to all others, except when, in extraordinary circumstances, that right is abandoned byunfitness (see Matter of Male Infant L., 61 NY2d 420, 426-427 [1984]; Matter ofBennett v Jeffreys, 40 NY2d 543, 545-546 [1976]; Matter of Murray v Parisella, 41 AD3d 902, 903 [2007]; Matter of Linda D. v Renee D., 40AD3d 1201, 1202 [2007]). Notwithstanding a close and loving relationship, a nonbiologicalparent does not have standing to request custody or visitation when a biological parent is fit andopposes shared custody or visitation (see Matter of Alison D. v Virginia M., 77 NY2d651, 655-657 [1991]; Matter of Multari v Sorrell, 287 AD2d 764 [2001]; Matter ofRose v Walrad, 278 AD2d 537, 538 [2000]; Matter of Cindy P. v Danny P., 206AD2d 615, 616 [1994], lv denied 84 NY2d 808 [1994]). Despite these cases, plaintiff, inreliance upon Jean Maby H. v Joseph H. (246 AD2d 282 [1998]), asserts that defendantis equitably estopped from asserting that he lacks standing to seek custody of and visitation withher second son.
"The purpose of equitable estoppel is to preclude a person from asserting a right after havingled another to form the reasonable belief that the right would not be asserted, and loss orprejudice to the other would result if the right were asserted" (Matter of Shondel J. v Mark D., 7 NY3d 320, 326 [2006]). Here,the doctrine is inapplicable. The record reveals that shortly after the parties married, and whilethis son was only three or four years of age, defendant informed him that plaintiff was not hisbiological father. Moreover, defendant refused to consent to his adoption by plaintiff preciselyfor the reason that it would impact on the issue of custody and visitation in the event of a divorce.Under these circumstances, it cannot be concluded that defendant led plaintiff to form areasonable belief that her claim to custody of her second son would not be asserted. Becausedefendant refused to stipulate as to the custody of this child and plaintiff admitted that defendantwas a fit parent, Supreme Court erred in reaching this issue (see Matter of Alison D. vVirginia M., 77 NY2d at 656-657; Matter of Bennett v Jeffreys, 40 NY2d at547-549; Matter of Campbell vBrewster, 9 AD3d 620, 621 [2004]).
Next, Supreme Court possesses substantial and broad discretion in determining equitabledistribution issues (see Arnone vArnone, 36 AD3d 1170, 1172 [2007]; Ruzicka v Ruzicka, 31 AD3d 862, 863 [2006]; Robbins-Johnson v Johnson, 20 AD3d723, 725 [2005]; Niles v Niles, 157 AD2d 951, 952 [1990]). Here, plaintiff and hisfather both testified to the existence of these loans, the amounts when made and the balanceremaining unpaid at the time that the divorce action was commenced. Defendant's evidenceconsisted only of her own testimony that she was unaware of the existence of these debts. Byaccording the required deference to the fact-finding and credibility determinations of SupremeCourt (see Hiatt v Tremper-Hiatt, 6AD3d 1014, 1015 [2004]), we discern no basis on this record to conclude that SupremeCourt abused its discretion in determining this issue.
Finally, on the issue of counsel fees, no hearing was requested or held and defendant did notseek to have the issue determined by the submission of affidavits detailing the time spent anddisbursements made in defending this action. Under these circumstances, we have no adequatebasis upon which to measure and justify an increase in legal fees to defendant (see Nichols v Nichols, 19 AD3d775, 780 [2005]; Schultz v Schultz, 309 AD2d 1020, 1021-1022 [2003]). Notably,plaintiff does not challenge the propriety of Supreme Court's award of $2,000.
Cardona, P.J., Mercure, Crew III and Rose, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as awarded plaintiff jointcustody and rights of visitation with the nonbiological child, and, as so modified, affirmed.