| Matter of Ruggiero v Noe |
| 2010 NY Slip Op 07771 [77 AD3d 959] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of James Ruggiero, Respondent, v MicheleNoe, Appellant. |
—[*1] Feldman & Feldman, Uniondale, N.Y. (Steven A. Feldman and Arza Feldman of counsel),for respondent. Robert C. Mitchell, Riverhead, N.Y. (Amy E. King of counsel), attorney for thechild.
In a proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by herbrief, from stated portions of an order of the Family Court, Suffolk County (Lynaugh, J.), datedDecember 31, 2009, which, after a hearing, inter alia, granted the father's amended petition tomodify an order of the same court (Blass, Ct. Atty. Ref.), dated August 28, 2006, entered uponthe parties' consent, awarding them shared legal and residential custody of the subject child, so asto award the father sole residential custody of the child with visitation to her, and denied hercross petition to modify the visitation provisions of the order dated August 28, 2006. By decisionand order on motion of this Court dated February 16, 2010, enforcement of the order datedDecember 31, 2009, was stayed pending the hearing and determination of the appeal.
Ordered that the order dated December 31, 2009, is modified, on the law and on the facts, bydeleting the provision thereof granting that branch of the father's amended petition which was tomodify so much of the order dated August 28, 2006, as awarded shared residential custody to theparties, so as to award the father sole residential custody of the child with visitation to themother, and substituting therefor a provision denying that branch of the father's amendedpetition; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Family Court, Suffolk County, for furtherproceedings consistent herewith.
The parties to this action were divorced in 2004, pursuant to a judgment which incorporated,but did not merge, their earlier stipulation of settlement. The stipulation of settlement provided,inter alia, that the parties would have joint legal custody of their child, with the mother to haveresidential custody and the father to have visitation. The stipulation further provided that theparties could renegotiate visitation once the child reached school age. By order dated August 28,2006 (hereinafter the prior order), entered upon the parties' consent, the Family Court awardedthe parties shared legal and residential custody of the child. The order further provided, inter alia,that "[t]he child shall be enrolled in the Speonk-Remsenberg School District, in which the Fathercurrently resides," and that the child's school [*2]placement wasconditioned upon the father continuing to reside in the Speonk-Remsenberg School District andthe mother remaining in the William Floyd School District, where she resided at the time. Theorder also provided that if the father relocated out of the "Speonk-Remsenberg School District,the Mother shall have residential custody of the child and may enroll the child in the schooldistrict in which she resides. In the event the Mother relocates out of the William Floyd SchoolDistrict, the Mother shall have residential custody of the child and may enroll the child in theschool district to which she relocates."
In January 2009, the mother relocated from the William Floyd School District to theEastport-South Manor School District.
In September 2009, the father filed an amended petition to modify the prior order so as toaward him sole residential custody of the child, with visitation to the mother. The father alleged,inter alia, that the child was having behavior problems which the mother failed to address, andthat the mother's increased work schedule prevented her from being a proper custodian. Themother filed a cross petition to modify the visitation provisions of the prior order, asserting thatshe was entitled to custody of the child pursuant to the prior order, which awarded her custody ofthe child if she moved out of the William Floyd School District, and that the father was theparent in need of a visitation schedule.
In the order appealed from, the Family Court granted the father's amended petition, awardedhim sole residential custody of the child with visitation to the mother, setting forth a detailedvisitation schedule. The Family Court transferred custody of the child to the father, effectiveimmediately, and denied the mother's cross petition. The mother appeals from stated portions ofthe Family Court's order. We modify.
A hearing court's determination will not be upheld where, as here, it lacks a sound andsubstantial basis in the record (seeMatter of Summer A., 49 AD3d 722 [2008]; Marcantonio v Marcantonio, 307AD2d 740, 741 [2003]; cf. Matter ofReyes v Alvarado, 50 AD3d 1152 [2008]). "Modification of an existing custodyarrangement is permissible only upon a showing that there has been a change in circumstancessuch that a modification is necessary to ensure the continued best interests and welfare of thechild" (Matter of Pignataro v Davis,8 AD3d 487, 488 [2004]). At the hearing before the Family Court, the father failed to show achange in circumstances warranting a change in custody (see Matter of Stevenson v Stevenson, 70 AD3d 1515 [2010];Fox v Fox, 177 AD2d 209 [1992]). The hearing testimony established that from 2006 to2009, the parties shared physical custody of the child during the week and alternated weekendvisitation with the child. The parties have shown themselves to be remarkably adept atcooperating with one another to facilitate shared residential custody of the child (see Matterof Pignataro v Davis, 8 AD3d at 488; Marcantonio v Marcantonio, 307 AD2d at741-742; Janecka v Franklin, 131 AD2d 436 [1987]; cf. Pambianchi v Goldberg, 35 AD3d 688 [2006]). In particular, thechild's expressed preference to live with both parents is a good indication of what is in the child'sbest interests (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]). Accordingly, theFamily Court should have denied that branch of the father's amended petition which was tomodify the prior order dated August 28, 2006, so as to award him sole residential custody withvisitation to the mother.
Contrary to the mother's contention, the provision in the prior order, entered upon the parties'consent, automatically awarding her residential custody of the child if she moved out of theWilliam Floyd School District, cannot be given effect, because, based upon the totality of thecircumstances, an award of joint residential custody is in the child's best interest (seeFriederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982] ["(n)o agreement of the parties canbind the court to a disposition other than that which a weighing of all of the factors involvedshows to be in the child's best interest"]; Matter of Grigoli v Grigoli, 29 AD3d 792 [2006] [same]).Therefore, because the parties' 2006 consent agreement did not provide for an award of solecustody to the mother, she was not entitled to an order modifying the visitation provisions of theprior order so as to award the father visitation, and the Family Court therefore, properly deniedher cross petition to modify visitation.
We remit the matter to the Family Court, Suffolk County, for further proceedings, includinga determination of which days of the week each parent is to have residential custody of the child,and a schedule for each parent's holiday visitation with the child. Skelos, J.P., Eng, Hall and Lott,JJ., concur.