| Salvatore v Salvatore |
| 2009 NY Slip Op 09452 [68 AD3d 966] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Linda Salvatore, Respondent, v Gerald P. Salvatore,Appellant. |
—[*1] Horn & Horn, Huntington, N.Y. (Jeffrey S. Horn of counsel), for respondent. Arza Feldman, Uniondale, N.Y., attorney for the children.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Suffolk County (MacKenzie, J.), enteredDecember 11, 2008, as, upon an order of the same court dated August 15, 2007, made after ahearing, awarding custody of the parties' two children to the plaintiff, and an order of the samecourt dated May 20, 2008, denying his motion to modify the order dated August 15, 2007, so asto award him custody, awarded custody of the parties' two children to the plaintiff.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
"When determining custody cases, the primary concern is the best interests of the child(see Eschbach v Eschbach, 56 NY2d 167, 171-173 [1982]) . . . [i]ndetermining the custody arrangement that is in the child's best interests, the court must considermultiple factors. These include 'the quality of the home environment and the parental guidancethe custodial parent provides for the child, the ability of each parent to provide for the child'semotional and intellectual development, the financial status and ability of each parent to providefor the child, the relative fitness of the respective parents, and the effect an award of custody toone parent might have on the child's relationship with the other parent' " (Matter of Edwardsv Rothschild, 60 AD3d 675, 676-677 [2009] [citations omitted]).
"Since a custody determination necessarily depends to a great extent upon an assessment ofthe character and credibility of the parties and witnesses, deference is accorded the court'sfindings. Therefore, its findings should not be set aside unless they lack a sound and substantialbasis in the record" (Matter of Berkham v Vessia, 63 AD3d 1155, 1156 [2009] [citationsomitted]; see Torelli v Torelli, 62 AD3d 691, 692 [2009]; Matter of Edwards vRothschild, 60 AD3d at 677; Matter of Jara v Rivera, 60 AD3d 680 [2009]).
The Supreme Court's determination to award custody of the parties' son and daughter to themother has a sound and substantial basis in the record, and will not be disturbed. While theSupreme Court erred in its factual finding that the father had relinquished custody of one of hisdaughters from his first marriage, given the total circumstances of this case, that error does notdiminish the bases for the award of custody to the mother.[*2]
The father is not entitled to any relief based on his claimthat he received ineffective assistance of counsel. In the context of civil litigation, a claim ofineffective assistance will not be entertained, absent extraordinary circumstances (see Galil,LLC v Scott, 61 AD3d 820 [2009]; Mendoza v Plaza Homes, LLC, 55 AD3d 692,693 [2008]; Matter of Robinson, 44 AD3d 961 [2007]; Matter of Cichosz v Cichosz,12 AD3d 598, 599 [2004]; Matter of Ketcham v Crawford, 1 AD3d 359, 361 [2003];Matter of Eirich v Costello, 309 AD2d 934 [2003]; Matter of Saren v Palma, 263AD2d 544, 545 [1999]). No such extraordinary circumstances are present on this record.
Furthermore, the Supreme Court properly denied the father's motion to modify the award ofcustody to the mother. " 'Modification of an existing custody arrangement is permissible onlyupon a showing that there has been a change in circumstances such that a modification isnecessary to ensure the continued best interests and welfare of the child' (Matter of Pignatarov Davis, 8 AD3d 487, 488 [2004])" (Matter of Watson v Smith, 52 AD3d 615, 616[2008]; see Matter of Adornato v Adornato, 63 AD3d 920 [2009]; Matter of Meyersv Sheehan, 62 AD3d 802, 803 [2009]; Matter of Gurewich v Gurewich, 58 AD3d628, 629 [2009]; Foley v Foley, 52 AD3d 773, 774 [2008]).
"A noncustodial parent seeking a change of custody is not entitled to a hearing withoutmaking some evidentiary showing sufficient to warrant a hearing" (Matter of Lopez vInfante, 55 AD3d 837, 838 [2008] [citations omitted]; see Matter of Olds v Binyard,64 AD3d 658, 659 [2009]; Jean v Jean, 59 AD3d 599 [2009]; Matter of Baumanv Abbate, 48 AD3d 679, 680 [2008]; Spratt v Fontana, 46 AD3d 670, 671 [2007];Green v Green, 43 AD3d 867 [2007]). The father failed to make the requisite showing towarrant a hearing. His conclusory and nonspecific allegations, unsupported by any evidentiaryshowing, were insufficient to warrant a hearing (see Matter of Blackstock v Price, 51AD3d 914, 915 [2008]; Arcabascio v Arcabascio, 48 AD3d 606, 607 [2008]).
The father's remaining contentions are without merit. Santucci, J.P., Miller, Angiolillo andEng, JJ., concur.