DiNapoli v. DiNapoli

2021 NY Slip Op 07539

Tracey M. DiNapoli, plaintiff-appellant, v. Ryan F. DiNapoli, respondent;

Noa D. (Anonymous), et al., nonparty-appellants.

Nos. 2020-07049, 2021-00123

Index No. 6474/16

Supreme Court of New York, Second Department

December 29, 2021

Argued - December 3, 2021

Quatela Chimeri PLLC, Hauppauge, NY (Christopher J. Chimeri Joseph Covello, and Sophia Arzoumanidis of counsel), for plaintiff-appellant.

Rachel A. Camillery, West Islip, NY, attorney for the children, the nonparty-appellants.

ROBERT J. MILLER, J.P. BETSY BARROS VALERIE BRATHWAITE NELSON PAUL WOOTEN, JJ.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered January 7, 2019, (1) the plaintiff appeals and the children separately appeal, from an order of the Supreme Court, Suffolk County (Cheryl A. Joseph, J.), dated September 16, 2020, and (2) the plaintiff appeals from an order of the same court dated December 7, 2020. The order dated September 16, 2020, insofar as appealed from, upon a decision of the same court dated August 11, 2020, made after a hearing, granted the defendant's motion to modify the custody provisions of the parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce, so as to award him sole residential custody of the subject children, and awarded the defendant final decision-making authority. The order dated December 7 2020, granted the defendant's cross motion for an award of an attorney's fee to the extent of awarding him the sum of $25, 000. By decision and order on motion dated October 23, 2020, this Court, inter alia, granted that branch of the plaintiff's motion which was for a stay of enforcement of the order dated September 16, 2020, pending hearing and determination of the appeals.

ORDERED that on the Court's own motion, the notices of appeal from so much of the order dated September 16, 2020, as awarded the defendant final decision-making authority are deemed to be applications for leave to appeal from that portion of the order and leave to appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order dated September 16, 2020, is reversed insofar as appealed from, on the law and the facts, and the defendant's motion to modify the custody provisions of the parties' stipulation of settlement so as to award him sole residential custody of the subject children is denied; and it is further, ORDERED that the order dated December 7, 2020, is reversed, on the law and in the exercise of discretion, and the defendant's cross motion for an award of an attorney's fee is denied; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.

The parties were married in April 2004, and have two children together. In 2016, the plaintiff (hereinafter the mother) commenced an action for a divorce and ancillary relief. Pursuant to a stipulation of settlement, which was incorporated but not merged into a judgment of divorce entered January 7, 2019, the parties agreed to share joint legal custody of the children, with final decision-making authority to the mother, sole residential custody to the mother, and certain parenting time to the defendant (hereinafter the father). In March 2019, the father moved to modify the custody provisions of the stipulation of settlement so as to award him sole residential custody of the children based on the mother's alleged parental alienation. In an order dated September 16, 2020, made after a hearing, the Supreme Court, inter alia, granted the father's motion to modify the custody provisions of the stipulation of settlement so as to award him sole residential custody of the children, awarded him final decision-making authority, and directed that the mother have no contact with the children for 30 days, with certain parenting time to the mother thereafter. The mother and the children separately appeal.

In August 2020, the father cross-moved for an award of an attorney's fee. In an order dated December 7, 2020, the Supreme Court granted the father's cross motion to the extent of awarding him an attorney's fee in the sum of $25, 000. The mother also appeals from that order.

"To modify an existing custody arrangement, there must be a showing of a change of circumstances such that modification is required to protect the best interests of the child" (Matter of Zeis v Slater, 57 A.D.3d 793, 793; see Matter of Molinari v Tuthill, 59 A.D.3d 722; Matter of Manfredo v Manfredo, 53 A.D.3d 498). "The factors to be considered include whether the alleged change in circumstances indicates that one of the parties is unfit, the nature and quality of the relationships between the child and the parties, the ability of each parent to provide for the child's emotional and intellectual development, and the effect of awarding custody to one parent on the child's relationship with the other parent" (Matter of Vargas v Gutierrez, 155 A.D.3d 751, 752; see Eschbach v Eschbach, 56 N.Y.2d 167, 171-173). "'Since weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference'" (Matter of Vargas v Gutierrez, 155 A.D.3d at 753, quoting Matter of Jackson v Coleman, 94 A.D.3d 762, 763). Nevertheless, "this Court's authority in custody determinations is as broad as that of the hearing court, and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, the hearing court's determination will not be affirmed if it lacks a sound and substantial basis in the record" (Matter of Follini v Currie, 176 A.D.3d 1203, 1205 [citation omitted]; see Matter of Nevarez v Pina, 154 A.D.3d 854, 855; Matter of Caruso v Cruz, 114 A.D.3d 769, 772).

Here the Supreme Court's determinations to grant the father's motion so as to award him sole residential custody of the children and to award the father final decision-making authority lack a sound and substantial basis in the record. At the hearing, the father testified that he had regular visits with the children during the pendency of the divorce action until June 2018 when the visits ceased due to the issuance of an order of protection against him. The father testified that as early as September 2017, the parties' older child, then 12 years old, cried every time he picked her up for a visit. The father stated that as of the time of the hearing, he had "little or no relationship" with...