| Veronica S. v Philip R.S. |
| 2010 NY Slip Op 01256 [70 AD3d 1459] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Veronica S., Respondent, v Philip R.S.,Appellant. |
—[*1] Osborn, Reed & Burke, LLP, Rochester (Jeffrey L. Turner of counsel), forplaintiff-respondent. James A. Vazzana, Law Guardian, Rochester, for Brittany M.S. and Morgan E.S.
Appeal from a judgment of the Supreme Court, Monroe County (John M. Owens, J.), enteredDecember 23, 2008 in a divorce action. The judgment, among other things, awarded plaintiffsole custody of the parties' children and granted defendant visitation.
It is hereby ordered that the judgment so appealed from is unanimously modified in theexercise of discretion by vacating the directive in the eighth decretal paragraph that defendantpay all of the Law Guardian's fees and providing that the Law Guardian's fees shall be dividedequally between the parties and as modified the judgment is affirmed without costs, and thematter is remitted to Supreme Court, Monroe County, for further proceedings in accordance withthe following memorandum: In this divorce action, defendant husband contends that SupremeCourt erred in restricting his visitation with the parties' children upon awarding sole custody toplaintiff wife; that the court's decision-making process with respect to the children was flawedbecause the Law Guardian did not advise the court of the wishes of the children or advocate forthem; and that the court erred in requiring defendant to pay certain fees to the expertpsychologist and the Law Guardian.
We reject the contention of defendant that the court abused its discretion in limiting hisvisitation with the children. It is well settled that visitation issues are determined based on thebest interests of the children (see Matter of Wojcik v Newton [appeal No. 2], 11 AD3d1011 [2004]; Matter of Rought vPalidar, 6 AD3d 1112 [2004]), and that trial courts have "broad discretion in fashioninga visitation schedule" (Rought, 6 AD3d at 1112). Here, the record amply supports thecourt's determination that the best interests of the children would be served by restrictedvisitation with defendant (see generallyMatter of Hall v Porter, 52 AD3d 1289, 1289-1290 [2008]; Matter of Westfall v Westfall, 28AD3d 1229 [2006], lv denied 7 NY3d 706 [2006]). Defendant admitted that he hadsexual thoughts about children, including his own, and both the expert psychologist anddefendant's social worker testified that defendant suffers from pedophilia. Although there is noevidence that defendant in fact engaged in sexual contact with minors, the expert psychologisttestified that the children felt uncomfortable being alone with their father.[*2]"While the express wishes of children are not controlling, they areentitled to great weight, particularly where their age and maturity would make their inputparticularly meaningful" (Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117 [1990]).Here, the children were 12 and 15 years old, respectively, at the time of trial and, thus, theirexpressed preferences were entitled to great weight (see Matter of Minner v Minner, 56 AD3d 1198 [2008];Koppenhoefer, 159 AD2d at 117; Bergson v Bergson, 68 AD2d 931 [1979]).
We reject defendant's further contention that the Law Guardian did not advise the court ofthe wishes of the children and did not advocate for them. We note at the outset that defendantcontends for the first time on appeal that the Law Guardian did not advise the court of thechildren's wishes, and thus that contention is unpreserved for our review (see Matter of Alyshia M.R., 53 AD3d1060, 1061 [2008], lv denied 11 NY3d 707 [2008]; see generally Ciesinski vTown of Aurora, 202 AD2d 984, 985 [1994]). In any event, there is no merit to thatcontention. The record reflects that the Law Guardian met with the children several times inpreparation for trial, interviewed both parties, attended all pretrial proceedings, vigorouslyquestioned all of the witnesses at trial, made a successful motion for a Lincoln hearing,and represented the children during that hearing. The Law Guardian also prepared a post-trialsubmission in which he contended that sole custody be awarded to plaintiff, with restrictedvisitation to defendant. Even assuming, arguendo, that the Law Guardian did not adequatelyadvise the court of the children's wishes, we conclude that the court had sufficient information todetermine the best interests of the children (see Alyshia M.R., 53 AD3d at 1061-1062;see also Matter of Davona L., 45AD3d 1392 [2007], lv denied 10 NY3d 707 [2008]).
Also contrary to defendant's contention, we conclude that the court did not abuse itsdiscretion in requiring defendant to pay the expert psychologist's $600 trial retainer fee. Therecord establishes that the trial was postponed based upon defendant's representation that thematter was settled, and that the retainer fee was necessary to secure the expert psychologist'sappearance on the adjourned date. We agree with defendant, however, that the courtimprovidently exercised its discretion in ordering defendant to pay all of the Law Guardian's feesboth with respect to the trial as well as all post-trial proceedings. "Although the matter of counselfees is entrusted to the sound discretion of the trial court, it is 'nonetheless to be controlled by theequities of the case and the financial circumstances of the parties' " (Kavanakudiyil vKavanakudiyil, 203 AD2d 250, 252 [1994]). Here, defendant's net income is $50,790 peryear, while plaintiff's net income is $69,948 per year. Thus, the directive that defendant pay allof the Law Guardian's fees is not required to redress any economic disparity between the parties.Moreover, aside from defendant's refusal to sign a stipulation of settlement, there is no indicationthat defendant "engaged in any dilatory or obstructionist tactics in defending" the divorce actionor seeking increased visitation (see Kwong-Yu Lee v Oi Wa Chan, 245 AD2d 270[1997]), and such an award should not punish a party for deciding to proceed to trial rather thanagree to a settlement (see generallyComstock v Comstock, 1 AD3d 307, 308 [2003]). We thus conclude in the exercise ofour discretion that the Law Guardian's fees should be divided equally between the parties. Wetherefore modify the judgment accordingly, and we remit the matter to Supreme Court todetermine the amount to be paid by each party. Present—Centra, J.P., Peradotto, Greenand Pine, JJ.