Opinion
2013-07-24
In the Matter of Stephanie GONNARD, respondent, v. James GUIDO, appellant.
Elias Steven Gootzeit, Mount Vernon, N.Y., for appellant. Assaf & Siegal PLLC, Albany, N.Y. (Michael D. Assaf of counsel), for respondent.
Elias Steven Gootzeit, Mount Vernon, N.Y., for appellant. Assaf & Siegal PLLC, Albany, N.Y. (Michael D. Assaf of counsel), for respondent.
Richard J. Strassfield, White Plains, N.Y., attorney for the child.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from (1) so much of an order of the Family Court, Westchester County (Morales–Horowitz, J.), entered September 11, 2012, as granted that branch of the mother's motion which was for an award of attorney's fees and expenses pursuant to 22 NYCRR 130–1.1 in the sum of $1,687.50, and (2) so much of an order of the same court entered December 24, 2012, as granted the mother's petition to modify a prior order of custody so as to award the mother sole legal and residential custody of the subject child.
ORDERED that the orders are affirmed insofar as appealed from, without costs or disbursements.
The parties were divorced in Florida in 2008 and a parenting plan with regard to the parties' child, who was born in 2004, was issued by a Florida court in 2009, while the parties both resided in Florida. In November 2010, the Florida court granted the father's petition to relocate to New York with the child, and a time-sharing schedule was incorporated into the order. The mother thereafter moved to California. In March 2012, the mother filed a petition in the Family Court, Westchester County, seeking, inter alia, modification of the parenting plan and order issued by the Florida court. The Family Court granted the mother's petition, and awarded the mother sole legal and residential custody of the child. The court also granted that branch of the mother's motion which was for an award of attorney's fees and expenses pursuant to 22 NYCRR 130–1.1
“ ‘Since any custody determination depends to a great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record’ ” ( Matter of O'Loughlin v. Sweetland, 98 A.D.3d 983, 984, 951 N.Y.S.2d 160, quoting Matter of Skeete v. Hamilton, 78 A.D.3d 1187, 1188, 911 N.Y.S.2d 667).
Generally, to modify an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child ( see Matter of O'Loughlin v. Sweetland, 98 A.D.3d at 983, 951 N.Y.S.2d 160;Matter of Sparacio v. Fitzgerald, 73 A.D.3d 790, 899 N.Y.S.2d 640;Matter of Russell v. Russell, 72 A.D.3d 973, 974, 900 N.Y.S.2d 106;Trinagel v. Boyar, 70 A.D.3d 816, 893 N.Y.S.2d 636). Here, the Family Court's determination that there had been a change of circumstances sufficient to warrant a change of custody, based on evidence that the father interfered with the relationship between the mother and child by, inter alia, failing to comply with the visitation and communication provisions of the prior court orders, was supported by a sound and substantial basis in the record ( see Matter of Griffin v. Nikiea Moore–James, 104 A.D.3d 685, 686, 960 N.Y.S.2d 222;Matter of Cadet v. Lamour, 86 A.D.3d 538, 539, 928 N.Y.S.2d 301;Matter of Caravella v. Toale, 78 A.D.3d 828, 911 N.Y.S.2d 162;Matter of McClurkin v. Bailey, 78 A.D.3d 707, 707–708, 911 N.Y.S.2d 99).
The Family Court providently exercised its discretion in denying the father's application for a forensic evaluation ( see Matter of Solovay v. Solovay, 94 A.D.3d 898, 900, 941 N.Y.S.2d 712;Matter of Rhodie v. Nathan, 67 A.D.3d 687, 888 N.Y.S.2d 159). Moreover, the court did not err in disallowing, on hearsay grounds, the father's testimony regarding certain statements made by the child ( cf.Family Ct. Act § 1046[a][vi] ), and properly denied the father's application to compel the testimony of the attorney for the child ( see Matter of Rebecca B., 227 A.D.2d 315, 642 N.Y.S.2d 685;see alsoCPLR 3101[c], 4503). Any error by the court in precluding the testimony of a school psychologist proffered by the father was harmless ( seeCPLR 2002; Geary v. Church of St. Thomas Aquinas, 98 A.D.3d 646, 647, 950 N.Y.S.2d 163;Rodriguez v. New York City Tr. Auth., 81 A.D.3d 804, 804–805, 916 N.Y.S.2d 525;Sweeney v. Peterson, 24 A.D.3d 984, 985, 805 N.Y.S.2d 477). Additionally, the father waived any objection to personal jurisdiction ( see Matter of El–Sheemy v. El–Sheemy, 35 A.D.3d 738, 739, 826 N.Y.S.2d 695;Matter of Borggreen v. Borggreen, 13 A.D.3d 756, 757, 785 N.Y.S.2d 792;Matter of Fallon v. Fallon, 4 A.D.3d 426, 427, 771 N.Y.S.2d 381).
Moreover, the Family Court providently exercised its discretion in awarding the mother an attorney's fee in the sum of $1,687.50 as a sanction pursuant to 22 NYCRR 130–1.1 ( see Degtiarev v. Delecia–Kenny, 105 A.D.3d 691, 692, 963 N.Y.S.2d 144,lv. denied––– N.Y.3d ––––, 2013 N.Y. Slip Op. 77829, 2013 WL 3197481 [2013];Matter of Parkside Ltd. Liab. Co., 294 A.D.2d 582, 584, 742 N.Y.S.2d 580;Matter of De Ruzzio v. De Ruzzio, 287 A.D.2d 896, 731 N.Y.S.2d 775).
The father's remaining contentions are without merit.