| Nolan v Nolan |
| 2013 NY Slip Op 02129 [104 AD3d 1102] |
| March 28, 2013 |
| Appellate Division, Third Department |
| Joseph Nolan, Respondent, v Karen Nolan,Appellant. |
—[*1] Joseph Nolan, Clifton Park, respondent pro se. Christopher Obstarczyk, Albany, attorney for the children.
Rose, J. Appeal from a judgment of the Supreme Court (Seibert Jr., J.), entered July19, 2011 in Saratoga County, ordering, among other things, equitable distribution of theparties' marital property, upon a decision of the court.
Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were marriedin 1999 and are the parents of two children, a daughter (born in 2002) and a son (born in2004). They separated in 2006 and subsequently agreed to joint custody with the wifehaving primary physical custody and the husband having midweek and alternatingweekend visitation. They also reserved the right to relitigate the husband's midweekvisitation after the children started school. The day after the dismissal of the second ofthe wife's two unsuccessful divorce actions, the husband commenced this action claimingabandonment and seeking, among other things, primary physical custody of the children.The wife agreed to the ground of abandonment and sought, among other things, solelegal custody. After a bench trial, Supreme Court granted the divorce, continued jointlegal custody as well as a slightly reduced schedule of midweek overnight visitation withthe husband, and awarded him, among other things, counsel fees in the amount of[*2]$15,000. The wife now appeals.[FN*]
Where a voluntary agreement of joint custody is entered into, it will not be set asideunless there has been a sufficient change in circumstances showing that a modificationwill be in the best interests of the children (see Matter of Rosi v Moon, 84 AD3d 1445, 1446 [2011];Matter of Gaudette v Gaudette, 262 AD2d 804, 805 [1999], lv denied 94NY2d 790 [1999]). "[I]n evaluating the alleged change, a consensual arrangement isafforded less weight than one ordered by a court after a full hearing" (Matter of Rosiv Moon, 84 AD3d at 1446; see Matter of Whitcomb v Seward, 86 AD3d 741, 742[2011]; Matter of Eunice G. vMichael G., 85 AD3d 1339, 1340 [2011]). We have found that a sufficientchange in circumstances exists " 'where the relationship between joint custodial parentshas so deteriorated as to make cooperation for the good of the children impossible' " (Matter of Ferguson v Whible,55 AD3d 988, 990 [2008]; see Matter of Rikard v Matson, 80 AD3d 968, 969-970[2011], lv denied 16 NY3d 709 [2011]; Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1101[2007]). The record here contains sufficient evidence to support a finding that there wasa continuing deterioration in the parties' relationship constituting a significant change incircumstances (see Matter ofTimothy N. v Gwendolyn N., 92 AD3d 1155, 1156-1157 [2012]; Matter ofWhitcomb v Seward, 86 AD3d at 742; Matter of Eunice G. v Michael G., 85AD3d at 1339).
Specifically, the parties' testimony revealed that they rarely speak to each other.According to the wife, interactions with the husband that involved the children were sotense that she sought to avoid them at all costs. In turn, the husband's distrust of the wifehas led him to record his own conversations with the children and then to submit lengthyannotated transcriptions of the recordings in the parties' ongoing litigation. The recordreveals multiple instances where the parties were simply incapable of effectivelycommunicating regarding important aspects of the children's lives, including theirnumerous medical issues. Both children have attention deficit disorder, the daughter hasdepression and a skin pigmentation condition, and the son has juvenile diabetes. Theyalso have emotional issues as a result of the tension between their parents. Both partiesagree that the children are "in crisis," and the court-appointed psychologist describedthem as being "in emotional turmoil." Given the level of acrimony and its adverse effecton the children, we find that there has been a sufficient change in circumstances towarrant revisiting the joint custodial arrangement (see Matter of Jennifer G. v Benjamin H., 84 AD3d 1433,1434 [2011]; Matter ofWilliams v Williams, 66 AD3d 1149, 1150-1151 [2009]; Matter ofKilmartin v Kilmartin, 44 AD3d at 1101).
Because joint custody is unworkable and not in the children's best interests here, wemust determine which custodial arrangement will best promote those interests. Relevantfactors to be weighed include " 'maintaining stability in the children's lives, the quality ofrespective home environments, the length of time the present custody arrangement hasbeen in place, each parent's past performance, relative fitness and ability to provide forand guide the children's intellectual and emotional development, and the effect the awardof custody to one parent would have on the children's relationship with the other parent' "(Matter of Timothy N. v Gwendolyn [*3]N., 92AD3d at 1157, quoting Matterof Opalka v Skinner, 81 AD3d 1005, 1006 [2011]; see Matter of Coley v Sylva,95 AD3d 1461, 1462 [2012]).
Here, the record reflects that the wife lives in a four-bedroom house within half amile of the children's school. The children have many school friends in her neighborhoodand have bonded with the children of her boyfriend. The parties agree that the children'sschool is well-suited for them and that, in particular, the school nurse is well-versed inhandling the son's diabetes. The wife acknowledged the importance of the childrenmaintaining a relationship with the husband and, while she did not always keep himinformed of certain issues, including various health appointments and the daughter's firstcommunion, she was motivated by not wanting to expose the children to his violentoutbursts toward her. The husband lives in a two-bedroom apartment approximately 30miles from the children's school. The children share a bedroom and have no friends theirown age near the husband's residence. He acknowledged the need for a larger apartmentand a desire to live closer to the children's school, but he has gone deeply into debt, inpart by opposing the wife's attempts to obtain a divorce, and he has offered no concreteplan to improve his financial or housing situation. On balance, while neither party iswithout fault in the failure of their joint custodial arrangement, the stability offered bythe wife's household environment, as well as her ability to deal with the children's healthissues and her willingness to foster their relationship with the husband, lead us toconclude that an award of sole custody to her would be in the children's bestinterests.
Turning to visitation, the wife argues that there is no sound or substantialbasis in the record supporting the continued midweek overnight visitations awarded bySupreme Court. We must agree. As with custody, "[a]n existing visitation order will bemodified only if the applicant demonstrates a change in circumstances that reflects agenuine need for the modification so as to ensure the best interests of the child[ren]" (Matter of Susan LL. v VictorLL., 88 AD3d 1116, 1117 [2011], quoting Matter of Braswell v Braswell, 80 AD3d 827, 829 [2011]).As there has been a change in circumstances based upon the development of thechildren's various health issues since the 2008 order, we will consider whetherelimination of midweek overnight visits is in the children's best interests. Even withoutthe documented deterioration of the children's physical and mental health, we wouldconsider the issue in any event because the parties stipulated that the issue of midweekvisitation could be revisited without a showing of a change in circumstances once thechildren began attending school, and we find the stipulation to be proper under thecircumstances here (see e.g. Matter of Studenroth v Phillips, 230 AD2d 247,249-250 [1997]).
According to the wife, the children's routine is disrupted by having to spendovernights at the husband's residence during school. The wife described the children asbeing anxious, unsettled and constantly questioning as to who was picking them up atschool each day, and she testified that it was difficult to schedule them in extracurricularactivities. The husband acknowledged that the children were sometimes late to schoolwhen staying overnight at his residence and, at times, they went to school without theireyeglasses when in his care. The husband also testified that the children's behavior wasdifficult during single-night visits with him. Both the court-appointed psychologist andthe attorney for the children advocated for the elimination of midweek overnightvisitations in order to provide the children with a stable and predictable environment. Inlight of these circumstances, we agree that the children's best interests would be servedby eliminating midweek overnight visitations altogether (see Matter of Braswell vBraswell, 80 AD3d at 830-831; Matter of Johnpeer v Williams, 74 AD3d 1584, 1586[2010]; Matter of Carey vKimball, 15 AD3d 797, 798-799 [2005]).[*4]
Turning to the distribution issues, we concludethat, contrary to the wife's contention, the record supports Supreme Court's determinationto deny her claim that the husband wrongfully invaded his "Roth IRA" account. Theevidence at trial established that the "Roth IRA" account was created by the husbandprior to the marriage, and there is no evidence that any marital funds were evercommingled into that account. Thus, we find no basis for the wife's claim that she wasentitled to a credit for the husband's withdrawals (see Keil v Keil, 85 AD3d 1233, 1235 [2011]; Blay v Blay, 51 AD3d1189, 1191 [2008]; Shen vShen, 21 AD3d 1078, 1079 [2005]). As for Supreme Court's requirement thatthe wife pay half the amount of the storage unit fees, the record is clear that the storageunit was rented to store the parties' possessions while they worked out distribution issuesand, accordingly, we discern no abuse of discretion in Supreme Court's determination toequally divide the fees for the unit (see Brzuszkiewicz v Brzuszkiewicz, 28 AD3d 860, 861[2006], Liepman v Liepman, 279 AD2d 686, 689 [2001]).
We do find, however, that it was an abuse of discretion for Supreme Court todetermine that the wife was liable for half of the husband's tax liabilities in 2007 and2008. The husband presented no evidence that the wife was obligated to file joint taxreturns in either year, or to split child-care deductions. Nor did the husband establish theamount by which his taxes were increased or the wife's taxes were decreased by eitheraction. Accordingly, there was insufficient proof that the husband's individual income taxobligation should be treated as marital debt (see Bayer v Bayer, 80 AD3d 492, 493 [2011]; Wexler v Wexler, 34 AD3d458, 460 [2006], lv dismissed 8 NY3d 1007 [2007]).
Finally, in determining whether to award counsel fees (see DomesticRelations Law § 237 [a]), "[a] sufficient evidentiary basis must exist for the courtto evaluate the respective financial circumstances of the parties and the value of theservices rendered" (Yarinsky vYarinsky, 25 AD3d 1042, 1042 [2006] [internal quotation marks and citationsomitted]). Here, the disparity in the parties' incomes is not significant and the husbandoffered no retainer agreements or billing statements. Nor did he establish the nature orvalue of the services rendered. In the absence of any such evidence, Supreme Court erredin awarding counsel fees to the husband (see Schultz v Schultz, 309 AD2d 1020,1021-1022 [2003]; compare Matter of Buono v Fantacone, 252 AD2d 917, 919[1998]).
Mercure, J.P., Lahtinen and Garry, JJ., concur. Ordered that the judgment ismodified, on the law and the facts, without costs, by reversing so much thereof as (1)awarded the parties joint custody of the children, (2) provided plaintiff with physicalcustody of the children from Wednesday after school until Thursday morning, (3)directed defendant to reimburse plaintiff for a portion of his tax liabilities for 2007 and2008, and (4) awarded plaintiff counsel fees; defendant is awarded sole custody of thechildren, the midweek visitation is eliminated, defendant is not responsible for plaintiff's2007 and 2008 tax liabilities, and plaintiff is not entitled to counsel fees; and, as somodified, affirmed.
Footnote *: Although the wifeappealed from Supreme Court's written decision instead of the final judgment entered thesame day, we will treat the notice of appeal as valid in the interest of justice (seeCPLR 5520 [c]; Hunter v Hunter, 206 AD2d 700, 701 n [1994]).