| Matter of Saperston v Holdaway |
| 2012 NY Slip Op 02187 [93 AD3d 1271] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Willard Saperston, Respondent, v HeatherHoldaway, Appellant. |
—[*1] Carney & Giallanza, Buffalo (Mary G. Carney of counsel), forpetitioner-respondent-respondent. Emilio Colaiacovo, Attorney for the Child, Buffalo, for Wes H.
Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, A.J.), enteredJuly 1, 2011 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, grantedthe parties joint custody of their child and designated petitioner-respondent the primaryresidential parent.
It is hereby ordered that the order so appealed from is modified on the law and the facts byawarding primary physical custody of the child to respondent-petitioner and as modified theorder is affirmed without costs and the matter is remitted to Family Court, Erie County, forfurther proceedings in accordance with the following memorandum: Respondent-petitionermother appeals from an order that, inter alia, awarded the parties joint custody of their child andgranted petitioner-respondent father primary physical custody of the child. We agree with themother that Family Court's determination with respect to primary physical custody lacks a soundand substantial basis in the record (seegenerally Sitts v Sitts, 74 AD3d 1722, 1723 [2010], lv dismissed 15 NY3d 833[2010], lv denied 18 NY3d 801 [2011]; Fox v Fox, 177 AD2d 209, 211-212[1992]). We therefore modify the order by awarding primary physical custody to the mother andremitting the matter to Family Court to fashion an appropriate visitation schedule.
We note at the outset that, inasmuch as this case involves an initial custody determination, itcannot properly be characterized as a relocation case to which the application of the factors setforth in Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]) need be strictlyapplied (see Matter of Moore vKazacos, 89 AD3d 1546, 1546 [2011], lv denied 18 NY3d 806 [2012]; Matter of Baker v Spurgeon, 85 AD3d1494, 1496 [2011], lv dismissed 17 NY3d 897 [2011]; Matter of Schneider v Lascher, 72AD3d 1417, 1417 [2010], lv denied 15 NY3d 708 [2010]). Although a court mayconsider the effect of a parent's relocation as part of a best interests analysis, relocation is but onefactor among many in its custody determination (see Verity v Verity, 107 AD2d 1082,1084 [1985], affd 65 NY2d 1002 [1985]; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010];Malcolm v Jurow-Malcolm, 63AD3d 1254, 1255-1256 [2009]). Stated differently, "[i]n cases involving the geographic[*2]relocation of the custodial parent, as in all other custodyproceedings, the primary focus of the court is the best interests of the child, not the mere fact ofrelocation" (Matter of Donald C.O. v Carolyn D. v B., 224 AD2d 930, 930 [1996]). Here,the mother's relocation to Brooklyn was seemingly the predominant factor upon which the courtbased its custody determination. Indeed, despite acknowledging that this case is not a "'relocation case[ ],' " the court nonetheless proceeded to apply the Tropea factors, andconcluded that the mother failed to prove that her relocation was in the child's best interests. Weconclude that the court erred. Inasmuch as this case involves an initial custody determination, thecourt improperly required the mother to establish by a preponderance of the evidence that hermove to Brooklyn was in the best interests of the child (see Tropea, 87 NY2d at 741).Rather, the relevant issue is whether it is in the best interests of the child to reside primarily withthe mother or the father (see generally Eschbach v Eschbach, 56 NY2d 167, 172-174[1982]). We note in any event that the mother's "relocation is not a proper basis upon which toaward primary physical custody to [the father] . . . inasmuch as the child[ ] willneed to travel between the parties' two residences regardless of which parent is awarded primaryphysical custody" (Sitts, 74 AD3d at 1723).
In addition to placing undue emphasis on the mother's relocation, we conclude that thecourt's best interests determination is flawed and lacks a sound and substantial basis in the record(see generally Matter of Moran vCortez, 85 AD3d 795, 796-797 [2011]; Matter of Michael P. v Judi P., 49 AD3d 1158, 1159 [2008]). Thecourt indicated that it considered the following factors in rendering its determination: (1) thecontinuity and stability of the existing custodial arrangement, including the relative fitness of theparents and the length of time the custodial arrangement has continued; (2) the quality of eachparent's home environment; (3) the ability of each parent to provide for the child's emotional andintellectual development; and (4) the financial status and ability of each parent to provide for thechild (see Fox, 177 AD2d at 210).
With respect to the first factor, it is undisputed that, prior to the commencement of thisproceeding, when the child was approximately 14 months old, the mother was the child's primarycaregiver. The father testified that, from the child's birth until the commencement of thisproceeding, the mother was the primary caretaker of the child, took the child to doctorappointments, and provided health insurance for the child. There are no indications in the recordthat the mother is unfit to care for the child and, indeed, the court specifically found that therewere no issues with respect to the mother's ability to care for the child. Significantly, the fathertestified that the mother "taught [him] . . . almost everything [he] know[s] abouthow to care for [the child]." We thus conclude that the first factor is in the mother's favor.
As for the second factor, i.e., the quality of each parent's home environment, the recordreflects that both parents' homes are satisfactory to raise a child, and thus this factor does notfavor either party. The father resides in a four-bedroom farmhouse with his parents in a ruralcommunity in Western New York, while the mother lives in an apartment with 2½bedrooms in the Park Slope neighborhood of Brooklyn. With respect to the third factor, weconclude that the mother demonstrated the greater ability to provide for the child's intellectualand emotional development. The mother is 35 years old, holds a master's degree in mental healthcounseling, and is a New York State licensed mental health counselor. The father is 26 years oldwith a bachelor's degree in the entertainment business. The father admitted that, when the childwas a few months old, he became so frustrated with the child's crying that he "felt like throwing[the child] against the wall." In addition, the father testified that, when the child was born, he didnot know how to care for an infant, nor did he take a parenting course until after he filed thecustody petition, when the child was 14 months old. Prior to commencing this proceeding, thefather lived in an apartment that, by his own admission, was inadequate for a child. The fatherdid not make his apartment "baby ready" or seek alternate housing until the child was 14 monthsold. The father also testified that he voluntarily ceased all contact with the child during the four[*3]months preceding the commencement of this proceeding as aresult of an argument he had with the mother.
With respect to the fourth factor, i.e., the financial status and ability of each parent to providefor the child, the court concluded that such factor weighs in favor of the father. We disagree, andconclude that the court's determination in that regard is unsupported by the record. The evidenceestablishes that the mother is employed by the University of Pittsburgh Medical Center and earnsa salary of approximately $69,000. Although the mother lives in Brooklyn, she owns a home inWestern New York and applies the rental income from that home to her lease in Brooklyn. Bycontrast, the father works for his family's real estate business as an office manager and real estateagent, and he testified that he earns approximately $10,000 a year. The father acknowledged thathis parents "subsidize [his] existence," and that they "pay pretty much [his] way through life."The father also admitted that, without the financial assistance of his parents, he would struggle topay child care and would have difficulty supporting himself and the child. Although the fatherand the Attorney for the Child emphasized the father's alleged "earning capacity," we concludeon the record before us that the father's earning potential is entirely speculative. At the time oftrial, the father had been working as a real estate agent for more than three years, yet he estimatedthat his income was $10,000 a year. The father testified that he had three multimillion dollarcommercial listings that, if sold, would yield commissions of $150,000, $75,000 and $100,000,respectively. The father admitted, however, that two of those properties had been on the marketfor approximately a year. To the extent that the court's findings concerning the father's financialstability and earning capacity are based on the financial status of the father's parents, we note thatthe record contains no proof of the financial status of the paternal grandparents.
We further agree with the mother that the court erred in admitting the father's journal inevidence. There is no question that the journal constitutes hearsay, i.e., "out-of-court statementsoffered for the truth of the matter asserted" (Howard v Codick, 55 AD3d 1376, 1377 [2008]), and the fatherfailed to establish that the journal fell within any recognized exception to the hearsay rule. Inorder to admit a document as a past recollection recorded (see generally Prince,Richardson on Evidence § 6-220 [Farrell 11th ed]), the proponent must establish "that thedocument relates to matters the witness observed, the matters were fairly fresh when recorded oradopted, the witness testifies that the document accurately represented his or her recollection andknowledge when it was made and the witness is presently unable to recall the facts of the matter"(Morse v Colombo, 31 AD3d916, 917 [2006]). Here, the father did not testify that he could not recall the events that herecorded in the journal (see Landsman v Village of Hancock, 296 AD2d 728, 732 [2002],appeal dismissed 99 NY2d 529 [2002]). Further, although the father testified that hemade the entries contemporaneously with the events contained therein, a review of the journalreflects that the father later added commentary and/or observations on the events discussed. Inaddition, the journal contains alleged re-creations of texts and e-mails between the parties, whichwere not produced. Those portions of the journal violate the best evidence rule, which "requiresthe production of an original writing where its contents are in dispute and sought to be proven"(Kliamovich v Kliamovich, 85AD3d 867, 869 [2011]). We thus conclude that, while counsel for the father could haveutilized the journal to refresh the father's recollection as to specific dates or events, the courterred in allowing the admission of the entire document in evidence (see Matter of Smith v Miller, 4 AD3d697, 697-698 [2004]). Finally, we reject the contention of the father and the Attorney for theChild that any error in the admission of the journal is harmless. The journal contains numerousprejudicial "notes" concerning the father's impressions of the mother and justifications for hisconduct, and the court referred to the journal in its decision.
All concur except Centra and Martoche, JJ., who dissent and vote to affirm in the followingmemorandum.
Centra and Martoche, JJ. (dissenting). We respectfully dissent. "An award of custody is amatter that rests [*4]within the sound discretion of the hearingcourt" (Matter of Donald C.O. v Carolyn D.V.B., 224 AD2d 930, 930 [1996]). Because"Family Court's determination in a custody dispute is based upon a first-hand assessment of theparties, as well as their credibility, character and temperament, and the [court's] determinationsare to be accorded great weight on appeal, such a determination should not be disturbed unless itlacks a sound and substantial basis in the record" (Matter of Demeter v Alayon, 90 AD3d 1045, 1045 [2011]; see Matter of Sweetser v Willis, 91AD3d 963, 963-964 [2012]). Contrary to the majority's determination, we conclude that thecourt's decision to award primary physical custody to petitioner-respondent father has a soundand substantial basis in the record and should not be disturbed.
In this initial custody determination, "the overriding priority is the best interests of the child"(Matter of Lynch v Gillogly, 82AD3d 1529, 1530 [2011]; see Donald C.O., 224 AD2d at 930). While a strictapplication of the relocation factors set forth in Matter of Tropea v Tropea (87 NY2d727, 740-741 [1996]) was not required, nevertheless respondent-petitioner "mother's relocationwas 'a very important factor' among all factors to be considered in making a best interestsdetermination, as was the effect of the move on the child's relationship with the father if themother were awarded custody" (Matterof Sullivan v Sullivan, 90 AD3d 1172, 1173 [2011]; see Matter of Schneider v Lascher, 72 AD3d 1417, 1417 [2010],lv denied 15 NY3d 708 [2010]).
Here, the record establishes that both parents are loving and fit, able to care for the child andcapable of providing financial support and a suitable and stable home for the child. The recordsupports the court's finding, however, that the mother is "distrustful, somewhat [overreactive]and chooses to dictate rather than cooperate and communicate." For example, the mother did notnotify the father of her planned move and did not provide a forwarding address. Additionally,after the father learned of the relocation, he brought an order to show cause to have the childreturned, which was granted, and the mother avoided service of the order. The court also foundthat "[v]arious allegations in [the m]other's petition proved to be unfounded, exaggerated orwithout merit."
Each parent has bonded with the child and is capable of fostering his intellectual andemotional development. Although the mother was the child's primary caretaker during the child'sfirst year, the father has the advantage of an extended family support network in Western NewYork, and the child would have increased access to his extended family if he resides with thefather (see Matter of Torkildsen vTorkildsen, 72 AD3d 1405, 1407 [2010]). The relevant factors do not weighsignificantly on the side of either party. Thus, "[a]ccording the appropriate great deference to thecourt's opportunity to hear the testimony and assess the credibility of witnesses, we find a soundand substantial basis for its conclusions in this record . . . and conclude that thecustody award in this difficult case was based upon careful consideration of the appropriatefactors and the child's best interests" (Schneider, 72 AD3d at 1419 [internal quotationmarks omitted]). Finally, contrary to the view of the majority, we conclude that any error in theadmission of the father's journal in evidence is harmless inasmuch as the father testified and theadmissible evidence at the hearing, without consideration of the father's journal, supports thecourt's determination (see Matter ofMatthews v Matthews, 72 AD3d 1631, 1632 [2010], lv denied 15 NY3d 704[2010]; Matter of Garrett D. v KevinL., 56 AD3d 1183, 1183-1184 [2008], lv denied 12 NY3d 702 [2009]). Wewould therefore affirm the order. Present—Scudder, P.J., Centra, Peradotto, Lindley andMartoche, JJ.