| Matter of Poremba v Poremba |
| 2012 NY Slip Op 02366 [93 AD3d 1115] |
| March 29, 2012 |
| Appellate Division, Third Department |
| In the Matter of Brian Poremba, Respondent, v Meghann Poremba,Appellant. (And Other Related Proceedings.) |
—[*1] Daniel Gartenstein, Kingston, for respondent.
Mercure, Acting P.J. (1) Appeal from an order of the Family Court of Ulster County (Mizel,J.), entered November 24, 2010, which, among other things, granted petitioner's application, inproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody, and (2)motion to dismiss appeal.
The parties are the parents of a daughter, born in 2003. They separated in 2004 and, pursuantto a 2008 consent order, had joint legal custody of the child, with respondent (hereinafter themother) having physical custody. The parties filed several modification petitions and, in 2009,Family Court awarded temporary physical custody to petitioner (hereinafter the father).Following fact-finding and Lincoln hearings, Family Court awarded the father sole legaland physical custody, with visitation to the mother. She appealed, and the father moved todismiss the appeal as moot.
Initially, we reject the father's argument that this appeal is moot. After the appealed-fromorder was issued, the parties resolved all outstanding issues in their divorce action by stipulation,including those related to custody. While the parties did agree to modify the terms of FamilyCourt's order in some respects, it was left intact in relevant part and incorporated but not mergedinto the judgment of divorce. The mother inquired about the stipulation's impact upon [*2]the present appeal, and was assured on the record that thestipulation did not affect her right to appeal the order at issue. Inasmuch as the appeal is not mootunder these circumstances, the father's motion to dismiss is denied (see Hughes v Gallup-Hughes, 90 AD3d1087, 1088 [2011]; Matter ofClaflin v Giamporcaro, 75 AD3d 778, 779 [2010], lv denied 15 NY3d 710[2010]).
Turning to the merits, we conclude that Family Court's decision to modify custody issupported by a sound and substantial basis in the record. After the 2008 order was issued, themother underwent hospitalizations, several weeks of in-patient treatment and aftercare related toher escalating alcohol abuse. Her treatment records indicated that she had also attempted suicideand, while she denied having suicidal intent, she admitted that she had cut her wrists andoverdosed on painkillers. Moreover, the record is replete with evidence that the parties wereunable to effectively communicate regarding the child, most notably when the father was misledinto believing that the mother was caring for the child at the maternal grandparents' residence,despite her absence for inpatient substance abuse treatment. The foregoing evidence amplydemonstrated a significant change in circumstances requiring a reassessment of the existingcustodial arrangement (see Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1130-1131[2010], lv dismissed and denied 14 NY3d 912 [2010]; Matter of Nephew v Nephew, 45 AD3d1194, 1195 [2007]; Matter of Hudson v Hudson, 279 AD2d 659, 660-661 [2001]).
The relevant factors in determining the custodial arrangement that would serve the child'sbest interests include "the quality of each parent's home environments, their past performanceand stability, and each parent's relative fitness and ability to provide for the child['s] intellectualand emotional development" (Matter ofWilson v Hendrickson, 88 AD3d 1092, 1094 [2011] [internal quotation marks andcitations omitted]; accord Matter ofGasparro v Edwards, 85 AD3d 1222, 1223 [2011]). The parties here both maintain aloving relationship with the child, but the father has provided a more stable home for her sinceobtaining physical custody. In addition, while neither party is without fault for the breakdown intheir communication, the father has demonstrated a willingness to discuss the child's needs withthe mother and to facilitate a relationship between them. The mother, in contrast, has repeatedlyfailed to relay important information to the father regarding the child, and inappropriatelyinvolved the child in the custody dispute. Indeed, the mother testified that she views the father as"an evil person with nothing but bad intentions," who is motivated solely by hatred for her.According due deference to Family Court's assessment of credibility, we perceive no basis uponwhich to disturb the award of legal and physical custody to the father (see Matter of Dickerson v Robenstein,68 AD3d 1179, 1180 [2009]; Matter of Burola v Meek, 64 AD3d 962, 965-966 [2009]).
We have examined the mother's remaining contentions and find them to be unavailing.
Lahtinen, Spain, Stein and McCarthy, JJ., concur. Ordered that the motion to dismiss theappeal is denied, without costs. Ordered that the order is affirmed, without costs.