| Albert v Albert |
| 2009 NY Slip Op 02549 [60 AD3d 979] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Mark Albert, Respondent, v Allison Albert,Appellant. |
—[*1] Charles E. Holster III, Mineola, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief,from stated portions of a judgment of the Supreme Court, Nassau County (Balkin, J.), datedAugust 22, 2006, which, upon an order of the same court dated May 10, 2005, and a decision ofthe same court dated May 8, 2006, made after a nonjury trial, inter alia, awarded the plaintiffcustody of the parties' two children, awarded the plaintiff the sum of $4,375 as his equitableshare of the defendant's business conducted under the name "Dramatic Changes Hair DesignSalon," and awarded the plaintiff an attorney's fee in the sum of $181,158 in connection with aninterim custody hearing.
Ordered that the judgment is modified, on the law, by deleting the provision thereofawarding the plaintiff the sum of $4,375 as his equitable share of the defendant's businessconducted under the name "Dramatic Changes Hair Design Salon;" as so modified, the judgmentis affirmed insofar as appealed from, with costs to the plaintiff.
The Supreme Court properly awarded the plaintiff sole custody of the parties' two children.In making a custody determination, the paramount consideration is the best interests of the child(see Eschbach v Eschbach, 56 NY2d 167 [1982]; Friederwitzer v Friederwitzer,55 NY2d 89 [1982]). Since the Supreme Court's determination is largely dependent upon anassessment of the credibility of witnesses and upon the character, temperament, and sincerity ofthe parents, its determination should not be disturbed unless it lacks a sound and substantial basisin the record (see Allain v Allain, 35 AD3d 513, 513-514 [2006]). Here, the SupremeCourt's determination to award the plaintiff sole custody of the children has a sound andsubstantial basis in the record, and we see no basis to disturb it.[*2]
In addition, contrary to the defendant's contention, thecourt providently exercised its discretion in awarding the sum of $181,158 to the plaintiff toreimburse him for attorney's fees he incurred in connection with an interim hearing on the issueof custody (see Domestic Relations Law § 237 [a]; DeCabrera vCabrera-Rosete, 70 NY2d 879, 881 [1987]; McCully v McCully, 306 AD2d 329,329 [2003]; Brancoveanu v Brancoveanu, 177 AD2d 614 [1991]).
However, as conceded by the plaintiff, the court erred in awarding him a portion of the valueof the defendant's hairstyling business, as it was sold prior to the parties' marriage and was notmarital property.
The defendant's remaining contentions are without merit. Spolzino, J.P., Florio, Miller andEng, JJ., concur.
Motion by the respondent, inter alia, to dismiss an appeal from a judgment of the SupremeCourt, Nassau County, dated August 22, 2006, on the ground that the appellant did not provideall of the trial transcripts. By decision and order on motion of this Court dated June 9, 2008, themotion was held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the motion is denied. Spolzino, J.P., Florio, Miller and Eng, JJ., concur.
Motion by the respondent on an appeal from a judgment of the Supreme Court, NassauCounty, dated August 22, 2006, to strike the appellant's appendix on the ground that it containsmatter dehors the record. By decision and order on motion of this Court dated August 20, 2008,the motion was held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition and in relationthereto, and upon the argument of the appeal, it is
Ordered that the motion is granted to the extent that pages 67 through 76, 80 through 89, 91through 120, and 152 through 191 of volume one and pages 86 through 157 and 165 through 185of volume two are stricken from the appendix, and have not been considered on the appeal; andit is further,
Ordered that the motion is otherwise denied. Spolzino, J.P., Florio, Miller and Eng, JJ.,concur.