| Matter of McVey v Barnett |
| 2013 NY Slip Op 04342 [107 AD3d 808] |
| June 12, 2013 |
| Appellate Division, Second Department |
| In the Matter of Timothy W. McVey,Appellant, v Katherine I. Barnett, Respondent. (Proceeding No. 1.) In the Matterof Katherine I. Barnett, Respondent, v Timothy W. McVey, Appellant. (Proceeding No.2.) In the Matter of Katherine I. Barnett, Respondent, v Timothy W. McVey, Appellant.(Proceeding No. 3.) |
—[*1] Katherine I. Barnett, Wallkill, N.Y., respondent pro se. Robert D. Siano, White Plains, N.Y., attorney for the child.
In related child custody, visitation, and support proceedings pursuant to Family CourtAct articles 4 and 6, the father appeals, as limited by his brief, (1) from so much of anorder of the Family Court, Orange County (Currier-Woods, J.), dated October 20, 2011,as, after a hearing, granted the mother's petition to modify a prior order of custody andvisitation of the same court dated October 26, 2009, so as to award her sole legal andphysical custody of the subject child, and (2) from so much of an order of the same courtdated April 27, 2012, as granted the mother's objection to a prior order of support of thesame court (Krahulik, S.M.) entered March 1, 2012, to the extent of awarding herretroactive child support in the sum of $6,723.
Ordered that the orders dated October 20, 2011, and April 27, 2012, are affirmedinsofar as appealed from, with one bill of costs.
"In order to modify an existing custody or visitation arrangement, there must be ashowing that there has been a change in circumstances such that modification is requiredto protect the best interests of the child" (Matter of Francois v Grimm, 84 AD3d 1082 [2011][internal quotation [*2]marks omitted]; seeFamily Ct Act § 652). "The essential consideration in any custody controversy isthe best interests of the child" (Matter of McDonough v McDonough, 73 AD3d 1067,1068 [2010]). "The best interests of the child are determined by a review of the totality ofthe circumstances" (Matter ofGarcia v Fountain, 82 AD3d 979, 980 [2011]). "Although a child's wishes arenot determinative, his or her wishes, age, and maturity should be given considerableweight" (Matter of Luo vYang, 103 AD3d 636, 637 [2013]). "Since custody determinations depend inlarge part on the trial court's assessment of the character and credibility of the parties andwitnesses, that court's findings are generally accorded deference and will not be disturbedunless they lack a sound and substantial basis in the record" (Matter of Guzman v Pizarro,102 AD3d 964, 965 [2013] [citations omitted]; see Matter of Mollet v Mollet, 99 AD3d 1007, 1008[2012]).
Considering the totality of the circumstances, including the wishes of the subjectchild, which were expressed when he was 15 years old, the Family Court's determinationthat there had been a sufficient change in circumstances requiring a change in custody toprotect the best interests of the child has sound and substantial basis in the record and,thus, should not be disturbed (see Matter of Guzman v Pizarro, 102 AD3d at 965;Matter of Mollet v Mollet, 99 AD3d at 1008; Matter of Francois vGrimm, 84 AD3d at 1082; Matter of McDonough v McDonough, 73 AD3dat 1068).
Contrary to the father's contention, the Support Magistrate's determination of basicchild support was proper. Since the combined parental income exceeded $136,000, thecourt, in its discretion, could apply the applicable percentage, in this case 17% for onechild, or the factors set forth in Family Court Act § 413 (1) (f), or both, to theparental income in excess of $136,000 (see Family Ct Act § 413 [1] [b] [3][i]; [c] [3]; [g]; Matter of Cassano v Cassano, 85 NY2d 649, 652-653 [1995]; Finke v Finke, 15 AD3d615, 618 [2005]; Matter of Cody v Evans-Cody, 291 AD2d 27, 29 [2001]).The Support Magistrate properly applied the percentage to $136,000 of the parties'combined income in determining basic child support. However, the Support Magistrateerred in deducting $3,500 from the mother's retroactive child support for the period ofAugust 19, 2011, to February 23, 2012, and, accordingly, should have awarded themother $6,723, rather than $3,223, in retroactive child support for that period.
The father's remaining contentions are without merit or are not properly before thisCourt. Dillon, J.P., Chambers, Austin and Hinds-Radix, JJ., concur.