| Matter of Memole v Memole |
| 2009 NY Slip Op 04782 [63 AD3d 1324] |
| June 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of Vincent A. Memole, Jr., Respondent, v SallyMemole, Appellant. (And Two Other Related Proceedings.) |
—[*1] Eugene P. Grimmick, Troy, for respondent. Margaret E. Donnelly, Law Guardian, East Greenbush.
Garry, J. Appeal from an order of the Family Court of Rensselaer County (Griffin, J.),entered July 11, 2008, which, among other things, granted petitioner's application, in threeproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
The parties are the parents of one child, a son whom they adopted immediately following hisbirth in March 2002. The parties were married in 1996 and resided in Rensselaer Countythroughout their marriage where petitioner (hereinafter the father) continues to reside. The fatherwas a member of the New York Army National Guard at the time of the marriage. In June 2004,he commenced an active duty status, and from October 2004 until October 2005, he wasdeployed in Iraq. Shortly before his scheduled return from this deployment, respondent(hereinafter the mother) vacated the family residence without advising the father of her plans.She moved with the parties' son to a town in western Massachusetts, approximately 72 milesaway.
Upon his return, the father initiated custody proceedings in Family Court. In May 2006, theparties entered into a stipulated order of custody providing for primary physical custody with[*2]the mother and specified parenting time with the father. Thestipulated order further provided that the mother would return to reside in New York no laterthan September 1, 2006, specifically identifying four regional school districts. When the motherfailed to relocate as agreed, the father filed a violation petition and the mother filed amodification petition. The mother returned to New York with the child in September 2006, atwhich time the parties agreed to attempt marriage counseling and withdrew the pendingpetitions. During this period, the mother initially stayed in a motel room and then moved to aspare room in the marital residence. After three weeks, however, she returned with the child toMassachusetts, allegedly because an individual who had been caring for her pets there was nolonger able to do so. Thereafter, although the parties continued to engage in marriage counselinguntil May 2007, the mother remained in Massachusetts and the child attended a Massachusettspre-kindergarten program.
In August 2007, the father filed a violation petition alleging that the mother had failed torelocate to New York as directed by the prior order and had refused to allow him to take thechild for an agreed-upon vacation. The mother cross-petitioned for modification of the stipulatedorder to permit her to remain in Massachusetts with the child. By reply, which Family Courttreated as a new petition, the father requested physical custody if the mother continued to fail tocomply with the stipulated order. In a thorough written decision rendered following a two-daytrial conducted in December 2007, Family Court held that it was in the child's best interest toaward the father sole custody of the child, with specified terms of parenting time for the mother,including shared holidays and vacations, and provisions for access and transportation. Themother appeals.
It is well settled that an existing custody order shall be modified only upon a sufficientshowing of "a change of circumstances indicating a real need to modify an order to further thebest interests of the child" (Matter ofGrant v Grant, 47 AD3d 1027, 1028 [2008]). In reviewing Family Court's order, thisCourt accords substantial deference to its factual determinations and assessments of witnesscredibility (see Matter of Robinson v Davis, 58 AD3d 1041, 1042 [2009]; Matter of Clupper v Clupper, 56 AD3d1064, 1066 [2008]). Thus, although this Court has broad authority in custody matters,Family Court's order will be upheld if it is supported by a sound and substantial basis in therecord (see Matter of Kilmartin vKilmartin, 44 AD3d 1099, 1103 [2007]; Matter of Eck v Eck, 33 AD3d 1082, 1084 [2006]).
In Family Court, the underlying change of circumstances was presented without dispute, andthe court proceeded to undertake a best interest analysis. Determining what custody arrangementis in a child's best interest requires review of the totality of the circumstances, including "'maintaining stability for the child[ ], the child ['s] wishes, the home environment with eachparent, each parent's past performance and relative fitness, each parent's ability to guide andprovide for the child['s] overall well-being and the willingness of each to foster a positiverelationship between the child[ ] and the other parent' " (Matter of Grant v Grant, 47AD3d at 1028-1029, quoting Matter of Kilmartin v Kilmartin, 44 AD3d at 1102).
Family Court did not, as the mother contends, give undue weight to the opinion of acourt-appointed psychologist who evaluated both parties and the child and testified that, in hisview, the mother lacked the ability to facilitate the child's relationship with his father. The expertopined that this ability was a hallmark of parental adequacy. As the mother points out, thepsychologist based his opinion on a single interview with the parties and the child and did notgather additional information by such means as observing their interactions or interviewing otherfamily members or friends. These issues were, however, fully explored by cross-examination[*3]during the hearing. Family Court found that the expert'stestimony was "totally credible and convincing," and the weight afforded to this evidence willnot be disturbed (see Matter ofWentland v Rousseau, 59 AD3d 821, 823 [2009]).
Further, Family Court did not base its determination solely on the expert's opinion, but asshown by the decision, gave substantial consideration to the testimony of both parties withregard to the various factors affecting the best interests determination and to the opinion ofanother expert, retained by the parties, who evaluated the mother's residence and found that itwas not inappropriate for the child. Finally, while not conclusive, the position of the child'sattorney was in accord with the conclusions reached by Family Court (see Matter of Armstrong v Crout, 33AD3d 1079, 1082 [2006]).
The record does not support the mother's claim that Family Court was biased against themother or motivated by the desire to punish her for her actions (see Matter of Shaffer v Winslow, 17AD3d 766, 767 [2005]). Contrary to her arguments, Family Court neither overlooked normisapprehended the fact that she had been the "hands-on parent throughout most of the [child]'slife," but, instead, used the quoted language in directly addressing this fact as one pertinentfactor in its careful analysis of the child's best interest. Family Court noted that the father'sopportunity to take a more active role in raising the child had been limited by his work andmilitary obligations and by the mother's removal of the child from the state and, further, that noevidence had been presented to suggest that he was not equally capable of providing for thechild's needs. Family Court properly placed greater emphasis and concern upon the mother'sfailure to value and support the child's relationship with the father (see Matter of Gunthorpe v Cathey, 52AD3d 907, 909 [2008]), as shown by evidence in the record of her active interference withthe father's scheduled parenting time on more than one occasion (see Brodsky vBrodsky, 267 AD2d 897, 899 [1999]), her "coaching" of the child—then five yearsold—to make a telephone call to the father expressing reluctance to move to New York(see Posporelis v Posporelis, 41AD3d 986, 990 [2007]), her failure to complete a court-ordered parenting program or tocomply with the prior stipulated order relative to returning to the region (see Matter of Smith v Miller, 4 AD3d697, 698-699 [2004]), and her failure to offer evidence of compelling circumstancesrequiring her relocation of the child to Massachusetts (see Matter of Tropea v Tropea, 87NY2d 727 [1996]).
Finally, the mother contends that Family Court improperly awarded sole custody to thefather without explaining why the prior joint custody arrangement could not be continued. Topermit effective appellate review, "[a] trial court must state in its decision 'the facts it deemsessential' to its determination. While the court need not set forth evidentiary facts, it must stateultimate facts: that is, those facts upon which the rights and liabilities of the parties depend"(Matter of Jose L.I., 46 NY2d 1024, 1025-1026 [1979], quoting CPLR 4213 [b] [citationomitted]). Here, Family Court did not determine, as an ultimate fact, that the parties' relationshiphas become " 'so acrimonious that they are incapable of putting aside their differences' "(Webster v Webster, 283 AD2d 732, 734 [2001], quoting Matter of Meres vBotsch, 260 AD2d 757, 759 [1999]). The parties' prior joint custody agreement wasmodified without any specific findings as to their ability to communicate or to cooperate for thegood of their child, and the record does not provide a sound and substantial basis for theconclusion that they were unable to do so (see Matter of Jemmott v Jemmott, 249 AD2d838, 839 [1998], lv denied 92 NY2d 809 [1998]). Though the parents experiencedserious disagreements and failures of communication, they also continued to communicate bye-mail and telephone, to cooperate in adjusting the child's visitation schedule, and to agree onsuch decisions as the child's therapy. The record thus reveals [*4]that there is "a modicum of communication and cooperation [and]both parties are fit and loving parents and demonstrate a strong desire to share in the upbringingof their child[ ]" (Matter of Blanchard v Blanchard, 304 AD2d 1048, 1049 [2003]). Wetherefore conclude that joint custody should continue.
Spain, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified,on the law, without costs, by providing that the parties shall have joint legal custody of the childand petitioner shall have primary physical custody of the child, and, as so modified, affirmed.