| Capodiferro v Capodiferro |
| 2010 NY Slip Op 07002 [77 AD3d 1449] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Nicole M. Capodiferro, Appellant, v Robert A. Capodiferro,Respondent. |
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Appeal from a judgment of the Supreme Court, Oneida County (Bernadette T. Romano, J.),entered January 16, 2009 in a divorce action. The judgment, insofar as appealed from, awarded theparties joint legal custody of their child and directed defendant to pay child support.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: In this matrimonial action, the parties settled all issues prior to trial with theexception of those involving the custody of their five-year-old son. Plaintiff mother sought sole legal andphysical custody, while defendant father sought to continue the joint legal and physical custodyarrangement that had been in place for the preceding 11 months, at the recommendation of theAttorney for the Child. Following a trial on the issue of custody, Supreme Court ruled in favor of thefather. We conclude that the court's determination that the existing custody arrangement is in the child'sbest interests "is supported by a sound and substantial basis in the record and thus [should] not bedisturbed" (Wideman v Wideman, 38AD3d 1318, 1319 [2007] [internal quotation marks omitted]). Contrary to the mother'scontention, "the record establishes that the court carefully weighed the appropriate factors, and thedetermination of the court, 'which [was] in the best position to evaluate the character and credibility ofthe witnesses, must be accorded great weight' " (id.). We note in addition that the recordsupports the court's determination that the joint custody arrangement is feasible despite conflictsbetween the parties, i.e., "the parties are not 'so embattled and embittered as to effectively precludejoint decision making' " (Matter of Schlafer vSchlafer, 6 AD3d 1202, 1202-1203 [2004]).
The record does not support the mother's further contention that the court failed to consider its ownfindings of fact and conclusions of law that accompanied the judgment of divorce in determining theissue of custody. The findings of fact and conclusions of law to which the mother refers were submittedto the court by her own attorney after the conclusion of the custody trial and the issuance of thecourt's custody decision. Also contrary to the contention of the mother, the record does not [*2]support her contention that the court was biased against her (cf. Matter of Yadiel Roque C., 17 AD3d1168, 1169 [2005]). Although the mother is correct that the court "elicited substantial testimonyfrom witnesses [during the trial,] . . . the [court's] questions sought only clarification orfurther explanation of testimony" presented by both parties (Matter of Owens v Garner, 63 AD3d 1585, 1586 [2009]).Present—Smith, J.P., Peradotto, Lindley, Sconiers and Pine, JJ.