| Matter of Ross v Ross |
| 2012 NY Slip Op 04759 [96 AD3d 856] |
| June 13, 2012 |
| Appellate Division, Second Department |
| In the Matter of Kevin J. Ross, Appellant, v Kristi S. Ross,Respondent. |
—[*1] Bloom & Bloom, P.C., New Windsor, N.Y. (Peter E. Bloom of counsel), for respondent. Jessica Bacal, Katonah, N.Y., attorney for the children.
In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals (1), as limited by his brief, from so much of an order of the Family Court, Orange County(Kiedaisch, J.), dated March 14, 2011, as, after a hearing, denied his petition to modify a priororder of the same court dated April 21, 2006, awarding sole custody of the parties' children to themother, and (2) from an order of the same court dated April 4, 2011, which granted the mother'smotion for an award of an attorney's fee.
Ordered that the order dated March 14, 2011, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated April 4, 2011, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
"Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that a modification is necessary to ensure thecontinued best interests and welfare of the child" (Matter of Pignataro v Davis, 8 AD3d 487, 488 [2004]; see Matter of Gurewich v Gurewich, 58AD3d 628 [2009]; Matter ofFallarino v Ayala, 41 AD3d 714 [2007]). The best interests of the child are determinedby a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167,171-174 [1982]). "The factors to be considered in making a determination with respect to thebest interests of the child include 'the quality of the home environment and the parental guidancethe custodial parent provides for the child, the ability of each parent to provide for the child'semotional and intellectual development, the financial status and [*2]ability of each parent to provide for the child, the relative fitness ofthe respective parents, and the effect an award of custody to one parent might have on the child'srelationship with the other parent' " (Matter of Yearwood v Yearwood, 90 AD3d 771, 773-774 [2011],quoting Matter of Elliott v Felder,69 AD3d 623, 623 [2010]; see Eschbach v Eschbach, 56 NY2d at 172). "Sinceweighing the factors relevant to any custody determination requires an evaluation of thecredibility and sincerity of the parties involved, the hearing court's findings are accordeddeference, and will not be disturbed unless they lack a sound and substantial basis in the record"(Matter of Jackson v Coleman, 94AD3d 762, 763 [2012]; see Matterof Solovay v Solovay, 94 AD3d 898 [2012]; Matter of Ross v Ross, 86 AD3d 615, 616 [2011]).
"Priority in custody disputes should usually be given to the parent who was first awardedcustody . . . because this policy assures stability in the child's life" (Matter ofSalvati v Salvati, 221 AD2d 541, 542 [1995]; see Friederwitzer v Friederwitzer, 55NY2d 89, 94 [1982]; White vMazzella-White, 84 AD3d 1068 [2011]; Matter of Russell v Russell, 72 AD3d 973, 974 [2010]; Matter of Ganzenmuller v Rivera, 40AD3d 756 [2007]). Thus, "[w]hen . . . there is no indication that a change ofcustody will result in significantly enhancing the child's welfare, it is generally considered in thechild's best interests not to disrupt his [or her] life" (Matter of Salvati v Salvati, 221AD2d at 543; see Gonzalez vGonzalez, 17 AD3d 635 [2005]).
Here, the Family Court's determination that there had not been a change of circumstancessufficient to warrant a change of custody was supported by a sound and substantial basis in therecord and will not be disturbed. Although there was evidence that the mother had interfered withthe father's visitation, her behavior was not sufficient to justify a change of custody (see Cervera v Bressler, 90 AD3d803, 805-806 [2011]; Matter ofFallarino v Ayala, 41 AD3d 714 [2007]). Although there was also evidence that themother had denied the father midweek visitation on several occasions between September of2007 and March of 2008 based on her interpretation of the father's visitation rights under a priororder, that issue has been resolved and does not warrant a change of custody (see Matter of Chery v Richardson, 88AD3d 788, 789 [2011]). Furthermore, contrary to the father's contention, the mother'shandling of the children's health care does not warrant a change of custody (see Matter of Cree v Terrance, 55AD3d 964, 967 [2008]; Matter of Daniels v Guntert, 243 AD2d 891 [1997]). Theevidence established that the children were "well cared for and thriving under [their] mother'scare," and there was nothing to suggest "that the father was a more fit parent or that he would beable to provide a better home environment or better care for the child[ren]" (Cervera vBressler, 90 AD3d at 805 [internal quotation marks omitted]; see Matter of Salvati vSalvati, 221 AD2d at 543).
The Family Court has the authority to award an attorney's fee in custody proceedings whenwarranted under the circumstances of the case (see Family Ct Act § 651 [b];Domestic Relations Law § 237 [b]; Matter of Belle v DeMilia, 19 AD3d 691 [2005]; Matter ofO'Neil v O'Neil, 193 AD2d 16, 19-20 [1993]). "The award of reasonable counsel fees is amatter within the sound discretion of the trial court" (Walker v Walker, 255 AD2d 375,376 [1998]; see Matter of Friedman vRome, 49 AD3d 878 [2008]). Any such award "is to be based on the financialcircumstances of the parties and the circumstances of the case as a whole, which may include therelative merit of the parties' positions, but should not be predicated solely on who won and wholost" (Matter of O'Neil v O'Neil, 193 AD2d at 20; see Matter of Dempsey v Dempsey, 78 AD3d 1179 [2010]; Matter of Sullivan v Sullivan, 40 AD3d865, 867 [2007]). Given the circumstances of this case, including the relative merits of theparties' positions and their respective financial circumstances, the Family Court providentlyexercised its discretion in granting the mother's motion for an award of an attorney's fee (see Matter of O'Shea v Parker, 16AD3d 510 [2005]; Walker v Walker, 255 AD2d at 376). Angiolillo, J.P., Florio,Belen and Chambers, JJ., concur.
Motion by the appellant on appeals from two orders of the Family Court, Orange County,dated March 14, 2011, and April 4, 2011, respectively, to strike stated portions of pages 9 and 19of the respondent's brief and pages 28 and 29 of the brief of the attorney for the children on theground that they refer to matter dehors the record. By decision and order on motion of this Courtdated April 18, 2012, the motion was held in abeyance and referred to the panel of Justiceshearing the appeal for determination upon the argument or submission of the appeals. Upon thepapers filed in support of the motion and the papers filed in opposition thereto, and upon theargument of the appeals, it is,
Ordered that the motion is granted to the extent that the following portions of the respectivebriefs of the respondent and the attorney for the children are stricken and have not beenconsidered in the determination of the appeal, and the motion is otherwise denied:
(1) the sentence beginning with the word "Not" and ending with the word "community" onpage 9 of the respondent's brief;
(2) the sentence beginning with the word "Clearly" and ending with the word "peers" on page9 of the respondent's brief;
(3) the sentence beginning with the word "This" and ending with the word "children" on page19 of the respondent's brief; and
(4) pages 28 and 29 of the brief of the attorney for the children. Angiolillo, J.P., Florio, Belenand Chambers, JJ., concur.