| Matter of Mahoney v Regan |
| 2012 NY Slip Op 07933 [100 AD3d 1237] |
| November 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of Lorraine L. Mahoney, Appellant, v Steven J.Regan, Respondent. |
—[*1] McNamee, Lochner, Titus & Williams, PC, Albany (Bruce J. Wagner of counsel), forrespondent. Aaron Turetsky, Keeseville, attorney for the children.
Mercure, J.P. Appeal from an order of the Supreme Court (Lawliss, J.), entered October 19,2011 in Clinton County, which partially granted petitioner's application, in a proceeding pursuantto Family Ct Act article 6, to modify a prior order of custody.
The parties were married in 1993 and divorced in 2010. Petitioner (hereinafter the mother)commenced this proceeding pursuant to Family Ct Act article 6, seeking an order modifying thecustody and visitation provisions of the judgment of divorce. Pursuant to a separation agreementthat was incorporated, but not merged, into the parties' judgment of divorce, the mother andrespondent (hereinafter the father) shared joint legal and physical custody of the parties' threechildren (born in 1996, 1999 and 2004). The mother now seeks sole legal and physical custody ofthe children.
Following a trial and Lincoln hearing, Supreme Court determined that the inability ofthe parties to effectively communicate warranted modification of the judgment of divorce. Thecourt awarded the mother sole legal and physical custody of the eldest child, awarded the fathersole legal and physical custody of the two younger children, and issued a revised visitation [*2]schedule. The mother appeals and we now affirm.
The parties are in agreement that the continued deterioration of their relationship and theircurrent inability to communicate effectively both render joint custody infeasible and constitute achange in circumstances warranting modification of the prior custody agreement (see Matter of Rosi v Moon, 84 AD3d1445, 1446 [2011]; Matter ofClaflin v Giamporcaro, 75 AD3d 778, 779-780 [2010], lv denied 15 NY3d 710[2010]). "Once [Supreme] Court determined that 'joint custody was not feasible, it wasincumbent upon [the court] to determine a custodial arrangement based upon the best interests ofthe child[ren] despite the absence' of a petition definitively seeking sole custody, since themother was clearly on notice that both legal and [physical] custody were at issue" through herown petition, as well as the testimony of both parties (Matter of Kowatch v Johnson, 68 AD3d 1493, 1495 [2009], lvdenied 14 NY3d 704 [2010], quoting Matter of Scala v Parker, 304 AD2d 858, 860[2003]; cf. Matter of Joseph A. v JaimyB., 81 AD3d 1219, 1220 [2011]; Matter of Adams v Bracci, 61 AD3d 1065, 1067 [2009], lvdenied 12 NY3d 712 [2009]). In determining the appropriate modification, relevant "factorsto be considered include maintaining stability in the children's lives, the quality of the respectivehome environments, the length of time the present custody arrangement has been in place andeach parent's past performance, relative fitness and ability to provide for and guide the children'sintellectual and emotional development" (Matter of Kowatch v Johnson, 68 AD3d at1495 [internal quotation marks and citation omitted]; see Matter of Eck v Eck, 57 AD3d 1243, 1244 [2008]).
In our view, Supreme Court considered all of the relevant factors, as well as the children'sviews, and ample evidence supports the determination awarding sole legal and physical custodyof the two younger children to the father, despite his failure to reimburse the mother for certainexpenses and his refusal to communicate with her by telephone. While the court concluded thatboth parents are capable of meeting the needs of the children, the record supports the court'sfindings that the mother had caused the breakdown in communication by her repeated displays ofhostile behavior toward the father. Moreover, she lacked insight into the importance of thechildren's relationship with the father and the impact of her behavior on them, and was "prone touse the children as pawns to score points in what she perceives to be a contest between herselfand the father." For example, as the court noted, the mother contacted the State Police andincorrectly reported that the father was driving while intoxicated with one of the children in thevehicle, and the father has been reported to Child Protective Services on four occasions, resultingin investigations that determined the claims to be unfounded. In contrast, the father—whocontinues to reside in the former marital home—recognized the important role that themother played in the children's lives, and demonstrated a willingness to foster a positiverelationship with her and to consent to whatever visitation the court deemed appropriate. Givingdue deference to Supreme Court's determination that the mother's testimony was often lacking incredibility, there is a sound and substantial basis to support the court's decision (see Hughes v Gallup-Hughes, 90 AD3d1087, 1089-1090 [2011]; Matter of Eck v Eck, 57 AD3d at 1244-1245; see also Jeannemarie O. v Richard P.,94 AD3d 1346, 1348 [2012]).
The mother's remaining contentions have been considered and found to be lacking in merit.
Rose, Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.