| Matter of Lovitch v Lovitch |
| 2009 NY Slip Op 05965 [64 AD3d 710] |
| July 21, 2009 |
| Appellate Division, Second Department |
| In the Matter of David Lovitch, Respondent, v AllysonLovitch, Appellant. (Proceeding No. 1.) In the Matter of Allyson Lovitch, Appellant, v DavidLovitch, Respondent. (Proceeding No. 2.) In the Matter of David Lovitch, Respondent, vAllyson Lovitch, Appellant. (Proceeding No. 3.) |
—[*1] Meth Law Offices, P.C., Chester, N.Y. (Michael D. Meth of counsel), for respondent. Gary E. Eisenberg, New City, N.Y., attorney for the children.
In related proceedings, inter alia, pursuant to Family Court Act article 6, the mother appeals,as limited by her brief, from (1) so much of an order of the Family Court, Orange County(Kiedaisch, J.), entered November 1, 2007, as, after a hearing, granted the father's petition tomodify certain custody provisions of the parties' judgment of divorce dated July 15, 2004,awarding the parties joint custody of their two children, so as to award him sole custody of thechildren and, in effect, denied her cross petition for the same relief, and (2) so much of an orderof the same court entered November 16, 2007, as denied that branch of her motion which was fora new trial on the issue of change of custody.
Ordered that the orders are affirmed insofar as appealed from, without costs ordisbursements.
The mother contends that the proceedings were tainted by the appearance of impropriety dueto an alleged conflict of interest of the attorney for the children. Specifically, the mother pointsto the fact that the father's attorney was a board member (and later elected president) [*2]of the Children's Rights Society, Inc. (hereinafter CRS), and thatthe court appointed an attorney from CRS to represent the children in this matter. However, thefather's attorney properly disclosed in open court his position with CRS early on in theproceeding, and the mother failed to object at any time before or during the course of thesix-month hearing. Indeed, the mother waited to file her motion for a new trial until after thecourt had issued an interim order awarding the father sole custody of the children. Under thecircumstances, the mother waived any claim of alleged conflict of interest as it applied to her (see Develop Don't Destroy Brooklyn vEmpire State Dev. Corp., 31 AD3d 144 [2006]; cf. B.A. v L.A., 196 Misc 2d 86[2003]; see also Code of Professional Responsibility DR 5-110 [22 NYCRR 1200.29]).To the extent that a claim of conflict of interest on behalf of the children also was asserted, theFamily Court providently exercised its discretion in denying the mother's motion for a new trial(see CPLR 4404 [b]; Carney v Carney, 236 AD2d 574, 575-576 [1997]). Absentactual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficientto require disqualification of an attorney (see Christensen v Christensen, 55 AD3d 1453 [2008]; Matter of Stephanie X., 6 AD3d778 [2004]; see also Matter ofGerald R.M., 12 AD3d 1192 [2004]). Here, the attorney for the children properlyadvocated the position of the children, and we find no discernible basis in the record to supportthe mother's contention that the representation was affected by the attorney's personal interests(see Matter of Manfredo vManfredo, 53 AD3d 498, 500 [2008]; cf. B.A. v L.A., 196 Misc 2d at 93).
"Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that modification is necessary to ensure the bestinterests of the child" (Matter ofStrand-O'Shea v O'Shea, 32 AD3d 398, 398 [2006]; see Eschbach v Eschbach,56 NY2d 167, 172 [1982]; Matter ofFallarino v Ayala, 41 AD3d 714, 714-715 [2007]). "[A] court's paramount concern inany custody dispute is whether, under the totality of the circumstances, a transfer of custody is inthe best interests of the child" (Musachio v Musachio, 53 AD3d 600, 601 [2008]; seeEschbach v Eschbach, 56 NY2d at 171; Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]; Neuman v Neuman, 19 AD3d383, 384 [2005]). "Since custody determinations depend to a great extent upon anassessment of the character and credibility of the parties and witnesses, the findings of theFamily Court will not be disturbed unless they lack a sound and substantial basis in the record"(Matter of Conforti v Conforti, 46AD3d 877, 877-878 [2007]; see Eschbach v Eschbach, 56 NY2d at 173; Matterof Fallarino v Ayala, 41 AD3d at 715).
Contrary to the mother's contention, the Family Court considered all relevant factors andprovidently granted the father's petition to modify certain custody provisions of the parties'judgment of divorce, which incorporated but did not merge the terms of the parties' stipulation ofsettlement, so as to award sole custody to the father, with visitation for the mother. The FamilyCourt properly determined that joint custody of the children was no longer a viable option due tothe history of animosity between the parties (see Braiman v Braiman, 44 NY2d 584, 587[1978]; Matter of Francis v Cox, 57AD3d 776 [2008]). The mother's interference with visitation and her negative remarks aboutthe father in the presence of the children were inconsistent with their best interests (see Matter of Gurewich v Gurewich,58 AD3d 628 [2009]; Matter of Conforti v Conforti, 46 AD3d at 877-878;Zafran v Zafran, 306 AD2d 468, 470 [2003]). By contrast, the father demonstrated anability and willingness to assure meaningful contact between the children and the mother (seeCuccurullo v Cuccurullo, 21 AD3d at 984; Young v Young, 212 AD2d 114,122-123 [1995]). Moreover, the father demonstrated that he was better able to provide a stableenvironment for the children (seeMatter of Francis v Cox, 57 AD3d 776 [2008]). Accordingly, the Family Court'sdetermination has a sound and substantial basis in the record. Santucci, J.P., Florio, Covello andDickerson, JJ., concur.