| Hughes v Gallup-Hughes |
| 2011 NY Slip Op 08690 [90 AD3d 1087] |
| December 1, 2011 |
| Appellate Division, Third Department |
| Ian W. Hughes, Respondent, v Marcy Gallup-Hughes,Appellant. |
—[*1] Law Offices of Ian R. Arcus, Albany (Kelly L. Egan of counsel), for respondent. Cheryl Maxwell, Plattsburgh, attorney for the child.
Stein, J. Appeal from an order of the Supreme Court (Powers, J.), entered June 23, 2010 inSchenectady County, which, among other things, awarded custody of the parties' child toplaintiff.
Plaintiff (hereinafter the father) and defendant (hereinafter the mother) are the parents of ason (born in 2001). The father commenced this divorce action in January 2009 seeking, amongother things, custody of the child. In February 2010, Supreme Court awarded the parties, asrelevant here, temporary joint legal custody with primary physical custody to the father andspecified parenting time with the mother.
Following a nonjury trial in May 2010, after finding that joint custody was not feasible due tothe parties' inability to communicate, exacerbated by the mother's hostility towards the father,Supreme Court awarded the father sole legal custody of the child and continued the parentingschedule provided in the temporary order, with additional provisions relating to holidays andbirthdays. The mother now appeals and we affirm.
Preliminarily, we note that this appeal has not been rendered moot by a subsequent FamilyCourt order which resolved custody enforcement and family offense petitions filed by the parties.That order was issued upon stipulation and clarified existing provisions of the order [*2]appealed from concerning communication and notice, while leavingintact the provisions of the order on appeal with respect to legal custody and parenting time.Accordingly, there is no basis to conclude that the mother relinquished her right to pursue thisappeal (see Matter of Siler vWright, 64 AD3d 926, 928 [2009]).
Nor are we persuaded by the mother's contention that her rights were violated when she wasallowed to represent herself at the nonjury trial. There is no constitutional right to counsel in amatrimonial action (see Matter of Smiley, 36 NY2d 433, 439 [1975]; Potter v MacLean, 75 AD3d 686,687 [2010]) and pro bono assignment of counsel is discretionary (see Matter of Smiley,36 NY2d at 441). Here, the mother acknowledged that she probably did not qualify for assignedcounsel. In addition, the record reflects that the mother worked in the federal court system, hadpreviously appeared in the proceedings with counsel and had engaged in protracted negotiationswith the father's counsel. While there was minimal discussion on the record between SupremeCourt and the mother regarding her decision to represent herself, after examining all the relevantcircumstances, we are satisfied that the mother's "decision to proceed pro se was an informed andvoluntary one made with full awareness of the risks inherent in representing [her]self"(Matter of Bombard v Bombard, 254 AD2d 529, 530 [1998], lv denied 93 NY2d804 [1999]). Moreover, Supreme Court afforded her appropriate latitude at trial. The court wasnot required to do more.
Turning to the merits, we conclude that Supreme Court's determination had a sound andsubstantial basis in the record. In making an initial custody determination, the trial court isguided by the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171[1982]; Matter of Jolynn W. v VincentX., 85 AD3d 1217, 1217 [2011], lv denied 17 NY3d 713 [2011]) uponconsideration of, among other things, each parent's ability to provide a stable home environment,their ability to provide for the child's overall well-being and their willingness to foster arelationship between the child and the noncustodial parent (see Matter of Rundall v Rundall, 86 AD3d 700, 701 [2011]; Matter of Smith v Smith, 61 AD3d1275, 1276 [2009]). We accord great deference to the factual findings of Supreme Court inview of its advantageous position to evaluate the testimony and assess the credibility of witnesses(see Matter of Rundall v Rundall, 86 AD3d at 701; Williams v Williams, 78 AD3d 1256, 1257 [2010]).
The parties here conceded that communication with regard to child rearing had becomeimpossible, with each one blaming the other. In addition, multiple altercations between theparties required police intervention. These circumstances provide a substantial basis for SupremeCourt's conclusion that joint custody was not appropriate (see Williams v Williams, 78AD3d at 1258; Matter of Tamara FF. vJohn FF., 75 AD3d 688, 688-689 [2010]).
As to Supreme Court's decision to award sole custody to the father, while both parents haveshortcomings, evidence concerning the mother's behavior seriously called into question herjudgment. For example, there was testimony that the mother had inappropriate conversationswith the child regarding legal matters and that she had "emotional outbursts" in the presence ofthe child. Further, the mother admitted to breaking into the father's residence while the child waspresent in order to retrieve clothing for the child after an apparent misunderstanding with thefather. The father testified that the mother becomes hostile when conversing with him.Significantly, the evidence established that the father had assumed most of the parentingresponsibilities when the mother moved to Oneida County from Schenectady County in October2008 and the mother conceded that his parenting skills were excellent. Under all the [*3]circumstances, while we do not condone the father's apparentresistance to having direct contact with the mother, there is ample support in the record forSupreme Court's determination that the father was the more appropriate custodial parent and "thebest alternative in a most unfortunate situation." We, therefore, decline to disturb thatcourt's conclusion that an award of sole custody to the father was in the best interests of the child.Moreover, while not determinative, this conclusion is in accord with the position advanced by theattorney for the child (see Matter of Rundall v Rundall, 86 AD3d at 702).
Nonetheless, we reject the father's contention that he should be awarded costs and counselfees. A prevailing litigant in a custody matter is not ordinarily entitled to recover his or hercounsel fees (see Kovach v Hurlburt, 288 AD2d 727, 729 [2001]). Nor is there anyindication that this appeal was in bad faith, "completely without merit in law" (22 NYCRR130-1.1 [c] [1) or otherwise frivolous (see 22 NYCRR 130-1.1; CPLR 2214). Indeed,Supreme Court explicitly stated that its decision "should not be construed as a finding that. . . the mother does not nurture the child and possess the functional ability to meethis needs."
To the extent not specifically addressed herein, the mother's remaining contentions have beenconsidered and are unpersuasive.
Spain, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.