| Farina v Farina |
| 2011 NY Slip Op 02497 [82 AD3d 1517] |
| March 31, 2011 |
| Appellate Division, Third Department |
| Ann E. Farina, Appellant, v Richard R. Farina, Jr.,Respondent. |
—[*1] Cynthia Feathers, Saratoga Springs, attorney for the child.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Powers, J.), entered November16, 2009 in Schenectady County, granting, among other things, defendant sole legal and primaryphysical custody of the parties' children, upon a decision of the court.
The parties were married in 1990 and have four sons who were born in 1992, 1994, 1998 and2000. In 2006, plaintiff commenced this action for divorce, and the parties stipulated to thegrounds for divorce and equitable distribution of their marital assets, including defendant'sretention of the marital home. Following a nonjury trial on the issues of custody and childsupport, Supreme Court awarded sole legal and primary physical custody of the children todefendant, directed plaintiff to pay him $193 per week in child support, and awarded plaintiff$500 per month in spousal support through August 2010 or the date of her remarriage. Ajudgment of divorce was then entered, and plaintiff now appeals.
Initially, we reject plaintiff's argument that Supreme Court erred in granting custody todefendant.[FN*]As in all child custody disputes, the paramount consideration is the best interests of the children(see e.g. Moor v Moor, 75 AD3d675, 676 [2010]). "In determining the children's best interests, a court must view all of thecircumstances while considering certain factors, [*2]includingmaintaining stability for the children, the children's wishes, the home environment with eachparent, each parent's past performance and relative fitness, each parent's ability to guide andprovide for the children's overall well-being and the willingness of each to foster a positiverelationship between the children and the other parent" (Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1102 [2007][citations omitted]; see Moor v Moor, 75 AD3d at 676). Here, the evidence of the parties'animosity toward each other, along with their inability to cooperate or communicate, amplysupports Supreme Court's conclusion that joint custody is not feasible (see Williams v Williams, 78 AD3d1256, 1258 [2010]; Matter ofClupper v Clupper, 56 AD3d 1064, 1065 [2008]; Matter of Kilmartin vKilmartin, 44 AD3d at 1101). Regarding the court's award of custody to defendant, we notethat the children have remained in the marital home with defendant since plaintiff's departure in2006, and plaintiff conceded that they were safe and well cared for in the home. Although theattorney for the children alleged that plaintiff pressured them to indicate that they wished to livewith her, the children expressed their desire to maintain the current arrangement. In addition, thecourt-appointed expert testified that two of the children were significantly more bonded withdefendant.
Indeed, plaintiff had become completely estranged from the oldest child when he was 14years old and did not take responsibility for the deterioration of their relationship, despite heractions both in telling the child not to return home again when he left during a fight and in falselyreporting defendant's car as stolen, causing defendant and the child to be stopped and surroundedby police. The expert found her claims that defendant had influenced the child against her to be amisperception, and there was evidence that defendant encouraged the children's relationship withplaintiff. Finally, we note that the expert concluded that the complete communication breakdownbetween the parties was primarily attributable to plaintiff, who had adopted a no-contact positionwith respect to defendant due to his alleged prior harassment of her—a position that theexpert deemed "illogical" and "ludicrous" given her desire for a shared custodial relationship.
Accordingly, while plaintiff was the primary caregiver when the children were younger andthere were undisputed allegations regarding a domestic violence incident perpetrated bydefendant, we defer to Supreme Court's credibility determinations and conclude that the award ofcustody to defendant is supported by a sound and substantial basis in the record (see Williamsv Williams, 78 AD3d at 1258-1259; Moor v Moor, 75 AD3d at 677-678; Matter of Siler v Wright, 64 AD3d926, 929 [2009]; Matter of LaPointe v La Pointe, 33 AD3d 1174, 1174-1175 [2006]; see also Matter of Zwack v Kosier, 61AD3d 1020, 1021-1022 [2009], lv denied 13 NY3d 702 [2009]). Furthermore, giventhe evidence that plaintiff caused or contributed to the breakdown in communication with theoldest child, we reject her argument that the child forfeited his right to support (see Matter of Boccalino v Boccalino,59 AD3d 901, 902-903 [2009]; Matter of Ogborn v Hilts, 269 AD2d 679, 680[2000]). Nor can we conclude that Supreme Court erred in calculating plaintiff's incomeinasmuch as the court "was wholly permitted to impute income to [her] based upon. . . prior employment experience, as well as [her] future earning capacity in light of[her] educational background" (Matterof Bianchi v Breakell, 23 AD3d 947, 949 [2005] [internal quotation marks and citationomitted]; see Matter of Yarinsky vYarinsky, 36 AD3d 1135, 1137 [2007]). Finally, we agree with plaintiff that SupremeCourt erred in determining that her child support obligation should increase upon the terminationof defendant's maintenance obligation to her (see Domestic Relations Law § 240[1-b] [b] [5] [vii] [C]; Smith vSmith, 1 AD3d 870, 873 [2003]). Thus, we grant her request to modify the judgment toprovide that no increase in child support occur by reason of the termination of maintenance.
Rose, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment is modified, on the lawand the facts, without costs, by striking so much thereof as provided that plaintiff's child supportobligation would increase on August 22, 2010, and, as so modified, affirmed.
Footnote *: The determination of custodywith respect to the oldest child has been rendered moot because he has reached the age of 18 (see Slater-Mau v Mau, 4 AD3d658, 659 [2004]).