Opinion
2014-06-25
Robert FILIPPI, respondent, v. Carey Ann FILIPPI, appellant.
Susan A. DeNatale, Bayport, N.Y., for appellant. Long Tuminello, LLP, Bay Shore, N.Y. (Kevin J. Werner of counsel), for respondent.
Susan A. DeNatale, Bayport, N.Y., for appellant. Long Tuminello, LLP, Bay Shore, N.Y. (Kevin J. Werner of counsel), for respondent.
Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the child.
PETER B. SKELOS, J.P., MARK C. DILLON, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
In a matrimonial action in which the parties were divorced by judgment entered January 6, 2006, the defendant appeals, as limited by her brief, from so much of a corrected order of the Supreme Court, Suffolk County (Buetow, Ct. Atty. Ref.), dated January 31, 2012, as, after a hearing, granted those branches of the plaintiff's motion which were to modify the custody provisions of a so-ordered stipulation dated October 18, 2007, so as to award him sole legal and residential custody of the parties' children and child support.
ORDERED that the corrected order is affirmed insofar as appealed from, without costs or disbursements.
“ ‘An agreement between parents concerning custody will not be set aside unless there is a sufficient change in circumstances since the time of the agreement and unless the modification of the custody agreement is in the best interests of the child’ ” (Matter of Aaron W. v. Shannon W., 96 A.D.3d 960, 960–961, 946 N.Y.S.2d 648, quoting Matter of Tercjak v. Tercjak, 49 A.D.3d 772, 772, 854 N.Y.S.2d 453). In determining the best interests of the child, the court must consider the “ ‘totality of [the] circumstances' ” (Matter of Gallo v. Gallo, 81 A.D.3d 826, 827, 916 N.Y.S.2d 800, quoting Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 96, 447 N.Y.S.2d 893, 432 N.E.2d 765). Since a custody determination necessarily depends to a great extent upon assessments of the credibility, character, temperament and sincerity of the parties, the trial court's determination should not be disturbed unless it lacks a sound and substantial basis in the record ( see Cervera v. Bressler, 90 A.D.3d 803, 805, 934 N.Y.S.2d 500;Matter of Elliott v. Felder, 69 A.D.3d 623, 623, 892 N.Y.S.2d 491;Cuccurullo v. Cuccurullo, 21 A.D.3d 983, 984, 801 N.Y.S.2d 360).
Here, contrary to the defendant's contentions, the Supreme Court did not improvidently exercise its discretion in granting those branches of the plaintiff's motion which were to modify the so-ordered stipulation dated October 18, 2007, so as to award him sole legal and residential custody of the parties' children and child support. The record demonstrates that the parties' relationship had deteriorated to the point that they could not communicate and rendered them unable to engage in joint decision-making with regard to their children ( see Matter of Falco v. DiForio, 106 A.D.3d 819, 820, 964 N.Y.S.2d 610;Matter of O'Loughlin v. Sweetland, 98 A.D.3d 983, 984, 951 N.Y.S.2d 160; Matter of Picado v. Doan, 90 A.D.3d 932, 933, 934 N.Y.S.2d 495). Moreover, the Supreme Court properly considered the totality of the circumstances, and its determination to award sole legal and residential custody to the plaintiff was in the children's best interests ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Accordingly, the court properly granted those branches of the plaintiff's motion.
The defendant's contention that the Court Attorney Referee was biased against her is without merit ( see Feng Lucy Luo v. Yang, 89 A.D.3d 946, 947, 933 N.Y.S.2d 80;Matter of Richardson v. Richardson, 80 A.D.3d 32, 44, 910 N.Y.S.2d 149).