| Fosdick v Fosdick |
| 2007 NY Slip Op 09988 [46 AD3d 1138] |
| December 20, 2007 |
| Appellate Division, Third Department |
| Jessica L. Fosdick, Respondent, v David S. Fosdick,Appellant. |
—[*1] Hinman, Howard & Kattell, L.L.P., Binghamton (Michael S. Sinicki of counsel), forrespondent. Lucy P. Bernier, Law Guardian, Oneonta.
Crew III, J. Appeal from an order of the Supreme Court (Peckham, J.), entered September 7,2006 in Delaware County, which, among other things, awarded primary physical custody of theparties' children to plaintiff.
The parties were married in December 1999 and have two children, born in 2000 and 2003.Prior to marriage, defendant earned a Bachelor's degree and a Master's degree; during the courseof the marriage, defendant acquired a Certificate of Administration and became employed fulltime as a school counselor. At all times relevant hereto, defendant also served as a reservist in theUnited States Army, ultimately attaining the rank of major. Plaintiff, who prior to marriage wasemployed and attending business college part time, worked on a part-time basis intermittentlyduring the marriage but essentially deferred her employment and education—apparently atdefendant's request—to be the primary caregiver for the parties' minor children.
In November 2004, defendant was deployed to Iraq, where he remained stationed untilOctober 2005. Although the parties debate whether their marital difficulties began prior to orafter his deployment, the record reflects that plaintiff commenced this action for divorce inSeptember 2005. Subsequently, in February 2006, the parties stipulated that plaintiff wouldreceive a divorce upon the ground of cruel and inhuman treatment and, in June 2006, further[*2]stipulated that whoever received custody of the children alsowould receive the marital residence in equitable distribution. In the interim, the childrenremained in the marital residence and the parties took turns living there on an alternating weeklybasis.
Following a hearing, Supreme Court awarded the parties joint legal custody with physicalcustody to plaintiff and visitation to defendant. The court also awarded plaintiff maintenance inthe amount of $900 per month for 30 months and directed defendant to pay plaintiff's counselfees in the sum of $3,000. This appeal by defendant ensued.
Preliminarily, we note that defendant appealed from Supreme Court's September 2006 orderrather than the underlying judgment of divorce entered in October 2006. Inasmuch as the orderdoes not differ materially from the judgment, we will exercise our discretion and treat the appealto have been taken from the final judgment (see Boylan v Dodge, 42 AD3d 632, 633 n [2007]).
Turning to the merits, we cannot say, based upon our review of the hearing testimony, thatSupreme Court's decision to award primary physical custody to plaintiff lacks a sound andsubstantial basis in the record. It is readily apparent that the parties love their children very muchand are more than capable of contributing—albeit in somewhat different ways—totheir financial, emotional and intellectual needs. It also is apparent that despite their verydifferent views of their marriage and of what went wrong and when, they have managed to setaside such differences and work in a cooperative fashion for the benefit of their children, asevidenced by their willingness to involve each other in the children's lives and by their stipulationregarding the marital residence, the latter of which admirably was designed to foster some senseof stability in the children's lives. And without belaboring the point, suffice to say that whatevercriticisms each party raises with regard to the other's character and/or parenting skills cut bothways. At the end of the day, Supreme Court had to choose between two fit and loving parents andgiven, among other things, plaintiff's admitted status as the primary caregiver and the greaterdegree of flexibility in her daily schedule, we cannot say that Supreme Court erred in awardingher primary physical custody.
As to the issue of maintenance, the case law makes clear that "[t]he amount and duration ofmaintenance are left mainly to the trial court's discretion, as long as the court considers thestatutory factors and sets forth bases for its conclusions" (Carman v Carman, 22 AD3d 1004, 1008 [2005]). In our view, thatstandard was met here. Simply put, given the disparity in the parties' respective incomes andeducations, the latter of which plaintiff deferred in order to raise the parties' children, and thecontributions plaintiff made to the marriage, the amount and duration of the maintenanceawarded (the latter of which representing the approximate length of time necessary in order forplaintiff to complete her education and receive a teaching certificate) seems entirely appropriate.
We reach a similar conclusion as to the issue of counsel fees. While we agree that thetimetable established by Supreme Court for paying the $3,000 in fees awarded was unrealisticgiven defendant's then monthly income, we have no quarrel with the sum awarded. Defendant'sremaining contentions, to the extent not specifically addressed, have been examined and found tobe lacking in merit.
Cardona, P.J., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.