| Bowman v Engelhart |
| 2013 NY Slip Op 08490 [112 AD3d 1187] |
| December 19, 2013 |
| Appellate Division, Third Department |
| Daniel J. Bowman, Respondent, v Heather M. Engelhart,Appellant. |
—[*1] Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer P. Rutkey of counsel), forrespondent. Peter A. Scagnelli, Albany, attorney for the children.
Spain, J. Appeal from a judgment of the Supreme Court (McNamara, J.), enteredMarch 13, 2013 in Albany County, ordering, among other things, sole legal custody ofthe parties' children to plaintiff, upon a decision of the court.
The parties were married in 2003 and are the parents of two children, a daughter(born in 2006) and a son (born in 2007). Plaintiff (hereinafter the husband) commencedthis action for divorce in 2010 and sought, among other things, sole legal custody of thechildren. In April 2012, Supreme Court temporarily granted the parties joint legal andphysical custody of the children and set forth a parenting schedule. The court thenconducted a nonjury trial on all unresolved issues and, among other things, awarded thehusband sole legal custody of the children. Defendant (hereinafter the wife) was grantedparenting time with the children on Wednesday evenings and alternate weekends. Thewife now appeals from the judgment of divorce, focusing solely upon the issues ofcustody and visitation.
As in all child custody determinations, we are guided here by the best interests of thechildren (see Jeannemarie O. vRichard P., 94 AD3d 1346, 1346 [2012]; Hughes v Gallup-Hughes, 90 AD3d 1087, 1089 [2011]). Inassessing the children's best interests, a court must view all of the circumstances whileconsidering certain factors, such "as the parents' ability to [*2]provide a stable home environment for the child[ren], thechild[ren's] wishes, the parents' past performance, relative fitness, ability to guide andprovide for the child[ren's] overall well-being, and the willingness of each parent tofoster a relationship with the other parent" (Matter of Rundall v Rundall, 86 AD3d 700, 701 [2011];see Jeannemarie O. v Richard P., 94 AD3d at 1346). Upon review, "we willaccord deference to [Supreme] Court's ability to observe the witnesses and assess theircredibility, and will not disturb a determination so long as it is supported by a sound andsubstantial basis in the record" (Matter of Rundall v Rundall, 86 AD3d at701-702).
The record "supports Supreme Court's determination that joint custody was notfeasible due to the parties' mutual animosity and inability to communicate as to mattersaffecting the children" (Jeannemarie O. v Richard P., 94 AD3d at 1347). For aprolonged period of time, the parties were unable to adequately communicate regardingtheir work schedules so that childcare could be arranged. While that problem has abated,their difficulties dealing with one another remain, with the husband admittedly recordingall of his interactions with the wife and the wife stating that she avoids communicatingwith the husband whenever possible. The record also reveals that they have engaged indisputes over essentially every aspect of child rearing, including matters of discipline,childcare, the sleeping arrangements of the children, and whether and how the childrenwould participate in trips and activities. They also have an ongoing dispute over whatschool their daughter should attend that has required judicial intervention to resolve.
While the parenting skills of the husband are not above reproach, a sound andsubstantial basis in the record similarly supports Supreme Court's grant to him of solecustody. The court credited the testimony of the husband that the wife endeavored tominimize his role in the lives of the children, including by repeatedly telling the childrenthat they would be moving to California to find "a new daddy" who was not "broken"and could be trusted, and depriving the husband of access to the children by encouragingthem to spend protracted periods of time in the wife's separate bedroom when theycohabited in the marital residence. Moreover, the wife routinely referred to the husbandin degrading and obscene terms in front of the children. A psychologist who conducted acourt-ordered evaluation of the parties and the children noted that the divorceproceedings had impaired the wife's "ability to support and . . . encourage ahealthy relationship between the children and [the husband]." The psychologistnevertheless recommended joint custody, but went on to make the incompatiblerecommendation that the husband should be granted "the final decision making power ifthere is a conflict" regarding the children. Indeed, the circumstances presented hereindicate that the husband is more fit to act as the custodial parent and more likely tofoster a positive relationship between the children and the other parent and he wasprovidently awarded sole custody (see Matter of Dana A. v Martin B., 72 AD3d 1136,1137-1138 [2010]; Matter of McGivney v Wright, 298 AD2d 642, 643-644[2002], lv denied 99 NY2d 508 [2003]).
While we perceive no reason to disturb the custody award, the attorney for thechildren—who advocated at trial for joint custody—persuasively argues thatthe wife's parenting time should be expanded to include holiday weekends, schoolvacations, and at least two weeks of time with the children each summer. The partiesagreed at oral argument that a modification of visitation along those lines is warranted,although the wife contends that she should be awarded even more parenting time. Theparties also concur that the record permits this Court to make an informed modificationof the visitation provisions, and we are permitted to do so given that "our authority incustody [and visitation] matters is as broad as that of" the trial court (Matter of Valentine vValentine, 3 AD3d 646, 647 [2004]; see Matter of Burton v Barrett, 104 AD3d 1084, [*3]1086 [2013]).
After reviewing the record in this case, we agree that the wife should be awardedadditional parenting time, and therefore modify the judgment. Initially, the wife willcontinue to be entitled to visitation on alternate weekends and Wednesday evenings asset forth in the judgment. Should the wife's weekend of parenting time fall on a three-dayholiday weekend, she is entitled to parenting time beginning at 5:00 p.m. on Thursdayevening if the holiday falls on a Friday, or ending at 7:00 p.m. on Monday evening if theholiday falls on a Monday. The wife is entitled to uninterrupted parenting time every yearduring the children's week-long school vacation in the spring from 7:00 p.m. on Sundayevening until 5:00 p.m. on Friday evening of that week, while the husband may keep thechildren for that period during the week-long President's Day February vacation. Thewife is awarded parenting time with the children for the Thanksgiving holiday inodd-numbered years, commencing at 7:00 p.m. on Thanksgiving Eve and running untilthe Friday after Thanksgiving at 5:00 p.m., while the husband will keep the children forthat period in even-numbered years, each adhering to the alternate weekend schedule forthe weekend following Thanksgiving. As for Christmas, the wife will have parentingtime with the children from 9:00 a.m. on Christmas Eve until 11:00 a.m. on ChristmasDay in even-numbered years, and she is entitled to parenting time from 11:00 a.m. onChristmas Day until 9:00 a.m. on December 26 in odd-numbered years; the husband hasthose same times in odd-numbered and even-numbered years, respectively. The wife isfurther awarded parenting time with the children from 9:00 a.m. on December 26 to 7:00p.m. on January 1 in even-numbered years, while the husband will care for the childrenduring that period in odd-numbered years.
Furthermore, the parties are entitled to two weeks, consecutive or nonconsecutive, ofuninterrupted vacation time with the children during the summer recess from school.Each parent must give written notification to the other of her or his preferred weeks byApril 15 and, in the event of a disagreement, the wife's preference shall have priority ineven-numbered years and the husband's preference shall have priority in odd-numberedyears. Finally, the wife shall have additional or alternative parenting time as the partiescan agree. We decline the invitation by the attorney for the child to set forth hissuggested detailed rights and responsibilities of the parties in writing as part of thecustody and visitation arrangement; nevertheless, we stress that both parties would bewell advised to scrupulously honor the visitation schedule and to be civil and courteousin all dealings with each other, avoiding the possibility of being held in contempt.
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law and the facts, without costs, by reversing so much thereof asawarded defendant visitation on alternate weekends from Friday at 5:00 p.m. untilSunday at 7:00 p.m. and every Wednesday from 5:00 p.m. until 7:30 p.m.; awardvisitation as set forth in this Court's decision; and, as so modified, affirmed.