| Gerson v Gerson |
| 2008 NY Slip Op 09748 [57 AD3d 606] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mMarialuisa Gerson, Appellant, v Andrew Gerson,Respondent. |
—[*1] Tabat, Cohen, Blum & Yovino, LLP, West Islip, N.Y. (Robert A. Cohen of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered August 20, 2003,the plaintiff appeals from an order of the Supreme Court, Suffolk County (McNulty, J.), dated August13, 2007, which, after a hearing, modified a visitation schedule provided in the parties' stipulation ofsettlement dated May 14, 2003, which was incorporated but not merged into the judgment of divorce,to provide her with only some visitation during Christmas recess every year and to direct the defendantto take the children to Mass on Easter Sunday in years when Easter Sunday falls within a period duringwhich he has visitation.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deleting theprovision thereof relating to Easter Sunday, and substituting therefor a provision directing that if EasterSunday falls within a period during which the defendant would otherwise have visitation, the plaintiffshall have visitation with the children on Easter Sunday from 9 a.m. until 6 p.m.; as so modified, theorder is affirmed, without costs or disbursements.
The children are the product of an interfaith marriage: the plaintiff mother is Roman Catholic, whilethe defendant father is Jewish. Pursuant to a stipulation of settlement, the parties have joint custody ofthe children with specified visitation. The Supreme Court, in the order appealed from, noted that thechildren are being raised as Roman Catholics, have received the sacraments, and attend Catholicreligious instruction. The court modified the visitation schedule provided in the [*2]parties' stipulation of settlement by granting the mother some visitationevery year during Christmas recess, and directed the father to take the children to mass on EasterSunday in the years when he has visitation on Easter Sunday. The mother appeals.
The order provides the mother with sufficient visitation during Christmas recess to maintain religiousobservances. However, under the circumstances, and to insure that the mother may maintain religiousobservances at Easter, the mother should be granted additional visitation. In those years when EasterSunday falls within a period with the father would otherwise have visitation, the mother should havevisitation with the children on Easter Sunday from 9 a.m. until 6 p.m.
The mother's contention that the court erred in failing to appoint an attorney for the children torepresent the best interests of the children is unpreserved for appellate review (see Dana-Sitzer v Sitzer, 48 AD3d 354[2008]). In any event, under the circumstances of this case, it is unnecessary to remit the matter to theSupreme Court, Suffolk County, for the appointment of an attorney for the children (see DiVittorio v DiVittorio, 36 AD3d848, 849 [2007]).
The mother's remaining contentions are without merit. Spolzino, J.P., Covello, Angiolillo andChambers, JJ., concur.