| Scholar v Timinisky |
| 2011 NY Slip Op 06226 [87 AD3d 577] |
| August 9, 2011 |
| Appellate Division, Second Department |
| Shlomo Scholar, Appellant, v Shoshana Timinisky,Respondent. |
—[*1] Shoshana Timinsky, Cedarhurst, N.Y., respondent pro se. Daniel P. Moskowitz, Jamaica, N.Y., attorney for the child.
In a matrimonial action in which the parties were divorced by judgment entered June 10,2008, the plaintiff appeals, as limited by his brief, from so much of an order of the SupremeCourt, Queens County (Raffaele, J.), dated September 9, 2010, as, without a hearing, denied thatbranch of his motion which was to compel the defendant to comply with certain provisions of theparties' stipulation of settlement dated June 19, 2007, which was incorporated but not mergedinto the judgment of divorce, granted those branches of the defendant's cross motion which were,in effect, to modify the parties' stipulation of settlement to the extent of "awarding the defendant'sole decision-making authority with respect to [the child's] education in the event that the partiesare unable to agree to a parenting coordinator' " and to disqualify a certain individual fromarbitrating issues regarding the education of the child, and, sua sponte, enjoined the plaintiff frombringing any further motions in this action without the permission of the Supreme Court.
Ordered that on the Court's own motion, the notice of appeal from so much of the order as,sua sponte, enjoined the plaintiff from bringing any further motions in this action without thepermission of the Supreme Court is deemed an application for leave to appeal, and leave toappeal from that portion of the order is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The parties to this action were married in 2005, and had one child born on April 24, 2006. Inthe parties' stipulation of settlement dated June 19, 2007, which was incorporated but not mergedinto the judgment of divorce entered June 10, 2008, the parties agreed that the mother wouldhave sole custody of the parties' child, the parties would equally pay the education costs for theirchild from preschool through high school, the parties would have joint decision-making authorityon all issues relating to their child's education, and if they could not agree, that the parties wouldarbitrate any such issues with a certain arbitrator. The Supreme Court properly determined that achange of circumstances existed so as to require a modification of the parties' stipulation ofsettlement to protect the best interests of the child (see Goldstein v Goldstein, 68 AD3d 717, 719-720 [2009]; Matter of Gurewich v Gurewich, 58AD3d 628 [2009]). The resolution of a dispute regarding parental joint decision-makingauthority with respect to a child requires a determination of what is [*2]in the child's best interest, based on the totality of the circumstances(see generally Matter of Tropea v Tropea, 87 NY2d 727 [1996]; Eschbach vEschbach, 56 NY2d 167 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]).
The Supreme Court possessed adequate relevant information which demonstrated that theparties were largely unable to cooperate on matters relating to their child's education. Therefore,an evidentiary hearing was unnecessary for the Supreme Court to determine that it was in thechild's best interests, if the parties could not agree upon a parental coordinator, to award themother sole decision-making authority over their child's education (see Matter of Figueroa v Lewis, 81AD3d 823 [2011]; see also Salick vSalick, 66 AD3d 757 [2009]). Likewise, the Supreme Court properly disqualified,without a hearing, the individual whom the parties had previously selected to arbitrate issuesrelating to their child's education, in light of its decision to award the mother soledecision-making authority as to the child's education.
Moreover, contrary to the father's contention, the attorney for the child did not overstep hisauthority in requesting that the father be directed to pay for his share of the child's preschooleducation costs.
Lastly, the Supreme Court did not improvidently exercise its discretion in, sua sponte,enjoining the father from bringing any further motions in this action without the permission ofthe Supreme Court. While public policy generally mandates free access to the courts (see Dimery v Ulster Sav. Bank, 82AD3d 1034, 1035 [2011]; Matter of Leopold, 287 AD2d 718 [2001]), the recordreflects that the father forfeited that right by abusing the judicial process through vexatiouslitigation (see Vogelgesang vVogelgesang, 71 AD3d 1132, 1134 [2010]).
Accordingly, we affirm the order insofar as appealed from. Covello, J.P., Florio, Lott andSgroi, JJ., concur.