Opinion
2012-12-12
In the Matter of Kenneth BARIBAULT, appellant, v. Kendra SAUVOLA, respondent.
Sari M. Freidman, P.C., Garden City, N.Y. (Katherine Ryan of counsel), for appellant. Chas G. Cancellare, Hauppauge, N.Y. (Curtis R. Exum of counsel), for respondent.
Sari M. Freidman, P.C., Garden City, N.Y. (Katherine Ryan of counsel), for appellant. Chas G. Cancellare, Hauppauge, N.Y. (Curtis R. Exum of counsel), for respondent.
Donna England, Centereach, N.Y., attorney for the child.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SYLVIA HINDS–RADIX, JJ.
In a custody proceeding, in effect, pursuant to Domestic Relations Law § 240(1), the father appeals from (1) an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated December 6, 2011, which granted the mother's motion for an award of an attorney's fee, and (2) an order of the same court dated December 21, 2011, which, after a hearing, inter alia, granted the mother's cross motion to modify a so-ordered stipulation of the same court (Bivona, J.) dated March 9, 2005, which awarded the parties joint legal custody of the parties' child, so as to award the mother sole legal and physical custody of the parties' child, and eliminated the father's mid-week overnight visitation with the child.
ORDERED that the orders are affirmed, with one bill of costs.
Where the initial custody determination is made by the adoption of an agreement by the parties, custody may be modified where is it shown that, viewing the totality of the circumstances, a change in custody is in the child's best interest ( see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 96, 447 N.Y.S.2d 893, 432 N.E.2d 765). “Custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, and where a full evidentiary hearing has been held on the child's best interests, the resultant findings will not be lightly set aside on appeal” unless they lack a sound and substantial basis in the record (Matter of Roldan v. Nieves, 76 A.D.3d 634, 635, 905 N.Y.S.2d 772;see Eschbach v. Eschbach, 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Salvatore v. Salvatore, 68 A.D.3d 966, 966–967, 893 N.Y.S.2d 63;Matter of Berkham v. Vessia, 63 A.D.3d 1155, 1156, 882 N.Y.S.2d 449). Under the circumstances of this case, the Supreme Court's determinations that joint legal custody was no longer feasible, to award sole custody to the mother, and to modify the father's visitation were all supported by evidence of changes in circumstances warranting those determinations in the child's best interest ( see Matter of Boggio v. Boggio, 96 A.D.3d 834, 835, 945 N.Y.S.2d 764;Matter of Crowder v. Austin, 90 A.D.3d 753, 754, 934 N.Y.S.2d 227;see also Matter of Mohabir v. Singh, 78 A.D.3d 1056, 1056–1057, 910 N.Y.S.2d 917). Accordingly, those determinations have a sound and substantial basis in the record.
Contrary to the father's contention, the Supreme Court providently exercised its discretion in determining that he was incompetent to testify at the hearing based upon the testimony of his treating physician ( see People v. Parks, 41 N.Y.2d 36, 46, 390 N.Y.S.2d 848, 359 N.E.2d 358;People v. McGrady, 45 A.D.3d 1395, 1395–1396, 844 N.Y.S.2d 796;see also Matter of Luz P., 189 A.D.2d 274, 277, 595 N.Y.S.2d 541).
Further, the award of an attorney's fee to the mother was a provident exercise of discretion ( seeDomestic Relations Law § 237[b]; Matter of Belle v. DeMilia, 19 A.D.3d 691, 692, 798 N.Y.S.2d 104), “based on the financial circumstances of the parties and the circumstances of the case as a whole,” including the relative merits of the parties' positions (Matter of O'Neil v. O'Neil, 193 A.D.2d 16, 20, 601 N.Y.S.2d 628;see Matter of Dempsey v. Dempsey, 78 A.D.3d 1179, 911 N.Y.S.2d 658;Matter of Sullivan v. Sullivan, 40 A.D.3d 865, 867, 836 N.Y.S.2d 259;Matter of O'Shea v. Parker, 16 A.D.3d 510, 790 N.Y.S.2d 717).
The father's remaining contentions are without merit.