| Matter of Dingeldey v Dingeldey |
| 2012 NY Slip Op 02219 [93 AD3d 1325] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| In the Matter of Joseph Dingeldey, Appellant, v Arlene B.Dingeldey, Respondent. |
—[*1] Denis A. Kitchen, Jr., Williamsville, for respondent-respondent. Jeffrey M. Harrington, Attorney for the Child, West Seneca, for Angela N.D.
Appeal from an order of the Family Court, Erie County (Kevin M. Carter, J.), enteredDecember 14, 2010 in a proceeding pursuant to Family Court Act article 6. The order denied thepetition in part.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this custody proceeding pursuant to Family Court Act article 6, petitionerfather appeals from an order denying that part of his petition seeking to modify the prior custodyarrangement with respect to the parties' daughter. Pursuant to the judgment of divorce,respondent mother had sole custody of both the daughter and the parties' son. During the courseof the evidentiary hearing on the petition, the parties agreed that custody of the son would betransferred to the father, and the hearing continued with respect to the daughter. After the fatherrested, the mother moved for a directed verdict on the ground that the father had failed toestablish a sufficient change of circumstances to modify custody of the daughter. The daughter'sAttorney for the Child joined in the motion, stating that the teenage daughter strongly preferredto continue living with the mother in Erie County, rather than moving to Tennessee to live withthe father and his new wife. Family Court granted the motion based on the father's failure toestablish a change of circumstances, but the court nevertheless went on to state that, based on theevidence presented by the father, it was not in the best interests of the daughter to change custodyto the father.
Even assuming, arguendo, that the father established "a change in circumstances sufficient towarrant an inquiry into whether the best interests of the [daughter] warranted a change incustody" (Matter of York v Zullich,89 AD3d 1447, 1448 [2011]), "we conclude on the record before us that a change in custodywould not be in the best interests of the [daughter]" (Matter of VanDusen v Riggs, 77 AD3d 1355, 1355 [2010]; see Matter of Walker v Cameron, 88AD3d 1307, 1308 [2011]; Matter ofYaddow v Bianco, 67 AD3d 1430, 1431 [2009]). As the court stated in its decisiongranting the mother's motion for a directed verdict, although both parties have problems, the[*2]mother is taking active steps to deal with her problems, and,more importantly, the daughter is doing very well while under her care. We also note that,"[w]hile the express wishes of [the] child[ ] are not controlling, they are entitled to great weight,particularly where [the child's] age and maturity would make [his or her] input particularlymeaningful" (Matter of Stevenson vStevenson, 70 AD3d 1515, 1516 [2010], lv denied 14 NY3d 712 [2010][internal quotation marks omitted]; seeMatter of O'Connor v Dyer, 18 AD3d 757, 757 [2005]). Here, the daughter, who is now15 years old, expressed a strong desire to remain with her mother. We therefore conclude that thecourt's custody determination is supported by a sound and substantial basis in the record and willnot be disturbed (see Matter ofMessimore v Messimore, 89 AD3d 1547 [2011]; Matter of McLeod v McLeod, 59 AD3d 1011, 1011 [2009]).Present—Centra, J.P., Lindley, Sconiers and Martoche, JJ.