| Irizarry v Irizarry |
| 2014 NY Slip Op 02016 [115 AD3d 913] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Shelly Irizarry, Appellant, v Richard Irizarry,Respondent. |
—[*1] Richard Irizarry, Bronx, N.Y., respondent pro se. Steven P. Forbes, Jamaica, N.Y., attorney for the child.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by herbrief, from stated portions of an order of the Supreme Court, Queens County(Jackman-Brown, J.), dated May 21, 2013, which, after a nonjury trial, inter alia, directedthat the parties have joint legal custody of their child, directed that the parties have jointdecision-making authority with respect to the child, directed the defendant to pay childsupport in the sum of only $25 per month, and directed the equitable distribution ofmarital assets.
Ordered that the order is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof directing that the parties have joint legalcustody of their child, and substituting therefor a provision directing that the plaintiffhave sole legal custody of the child, (2) by deleting the provision thereof directing thatthe parties have joint decision-making authority with respect to the child, (3) by deletingthe provision thereof directing the equitable distribution of marital assets, and (4) bydeleting the provision thereof directing the defendant to pay child support in the sum ofonly $25 per month; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements, and the matter is remitted to the Supreme Court, QueensCounty, for a hearing on the issues of equitable distribution and child support, andthereafter for a new determination of those issues.
Joint custody is appropriate between "relatively stable, amicable parents behaving inmature civilized fashion" (Braiman v Braiman, 44 NY2d 584, 589-590 [1978];see Matter of Lawrence vDavidson, 109 AD3d 826 [2013]). Here, however, given the nature of theparties' relationship and their inability to put aside their differences for the good of thechild, joint legal custody could only "enhance familial chaos" (Braiman vBraiman, 44 NY2d at 590). Contrary to the Supreme Court's determination, underthe circumstances of this case, an award of sole legal custody to the plaintiff is in the bestinterests of the child (see Matter of Lawrence v Davidson, 109 AD3d at 827; Matter of Wright v Kaura, 106AD3d 751, 752 [2013]; Elimelech v Elimelech, 58 AD3d 672, 673 [2009]). Wenote, however, that the provision of the order providing that each parent shall have fulland unimpeded [*2]access to the child's school andmedical information, as well as contact with teachers, caregivers, and providers, andtreating physicians and therapists, shall remain in effect.
Supervised visitation is appropriately required only where it is established thatunsupervised visitation would be detrimental to the child (see Matter of Bullinger vCosta, 63 AD3d 735, 735-736 [2009]; Cervera v Bressler, 50 AD3d 837, 839 [2008]; Rosenberg v Rosenberg, 44AD3d 1022, 1024 [2007]). The determination of whether visitation should besupervised is a matter left to the trial court's sound discretion, and its findings will not bedisturbed on appeal unless they lack a sound and substantial basis in the record (see Matter of Gooler v Gooler,107 AD3d 712 [2013]; Cervera v Bressler, 50 AD3d at 839). Here, contraryto the plaintiff's contention, the Supreme Court's determination that unsupervisedvisitation with the defendant would not be detrimental to the child was supported by asound and substantial basis in the record and, thus, will not be disturbed.
The distribution of marital property is generally left to the sound discretion of thetrial court (see Domestic Relations Law § 236 [B] [5] [e]; McLoughlin v McLoughlin, 74AD3d 911, 914 [2010]). "Pursuant to Domestic Relations Law § 236 (B) (5)(c), a court is required to consider the circumstances of the case and of the respectiveparties and to equitably distribute the marital property" (McLoughlin vMcLoughlin, 74 AD3d at 914). "Furthermore, Domestic Relations Law § 236(B) (5) (d) sets forth certain factors which the court 'shall consider' " (id.). " 'Infashioning an award of equitable distribution, the Supreme Court is required to discussthe statutory factors it relied upon in distributing marital property' " (Morille-Hinds v Hinds, 87AD3d 526, 527 [2011], quoting Spera v Spera, 71 AD3d 661, 662 [2010]). Here, theSupreme Court failed to set forth the factors it considered in deciding to equallydistribute the parties' property (see id. at 527; Payne v Payne, 4 AD3d 512, 513-514 [2004]).
Similarly, as to child support, the Supreme Court failed to calculate the "combinedparental income" of the parties, in accordance with Domestic Relations Law § 240,and, indeed, made no specific findings regarding the actual or imputed income of theparties (see Nicosia v Rios-Nicosia, 303 AD2d 390 [2003]).
Under the particular circumstances here, we deem it appropriate to remit the matter tothe Supreme Court, Queens County, for a hearing and a new determination of the issuesof equitable distribution and child support.
The plaintiff's remaining contention is without merit. Skelos, J.P., Dickerson,Leventhal and Hall, JJ., concur.