McCall v. McCandlish

207 A.D.3d 725

172 N.Y.S.3d 101

In the Matter of Lauren W. MCCALL, respondent,

v.David M. MCCANDLISH, appellant. (Proceeding No. 1)

In the Matter of David M. McCandlish, appellant,

v.Lauren W. McCall, respondent. (Proceeding No. 2)

2021–06663

Docket Nos. V-7517-19/21B/21C, V-7518-19/21B/21C

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 10, 2022

July 27, 2022

Brettschneider & Brettschneider LLP, Poughkeepsie, NY (Joseph M. Brettschneider of counsel), for appellant.

John J. Leonard, Hampton Bays, NY, for respondent.

Ronna L. DeLoe, Larchmont, NY, attorney for the children.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Kerri N. Lechtrecker, Ct. Atty. Ref.), dated August 11, 2021. The order, insofar as appealed from, after a hearing, in effect, granted that branch of the mother's petition which was to modify an order of the Court of Common Pleas of Philadelphia County, Pennsylvania, dated June 15, 2016, so as to provide that the parties’ children shall be enrolled in the Mattituck School District from the seventh grade through the twelfth grade to the extent of directing that the children be enrolled in that school district for the seventh and eighth grades.

ORDERED that the order dated August 11, 2021, is affirmed insofar as appealed from, with costs.

The parties were married on August 14, 2011, and have two children in common. On June 1, 2016, the parties were divorced by a decree and order of the Court of Common Pleas of Philadelphia, Pennsylvania (hereinafter the Court of Common Pleas). Pursuant to the parties’ separation agreement, which was incorporated into an order of the Court of Common Pleas dated June 15, 2016 (hereinafter the custody order), the parties were awarded joint legal custody of the children, and were to jointly agree on a private school for the children to attend starting in the sixth grade.

In March 2021, the father filed a petition to modify the custody order so as to provide that the elder child shall be enrolled in the Peconic Community School from the sixth grade through the eighth grade. In May 2021, the mother filed a petition seeking, inter alia, to modify the custody order so as to provide that the children shall be enrolled in the Southold Union Free School District from the seventh grade through the twelfth grade. The mother's petition was subsequently amended to substitute the Mattituck School District for the Southold Union Free School District. In an order dated August 11, 2021, made after a hearing, the Family Court, among other things, in effect, granted that branch of the mother's petition which was to modify the order of the Court of Common Pleas so as to provide that the children shall be enrolled in the Mattituck School District from the seventh grade through the twelfth grade to the extent of directing that the children be enrolled in that school district for the seventh and eighth grades. The father appeals.

"In order to modify an existing custody or parental access 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 Felgueiras v. Cabral, 204 A.D.3d 790, 791, 166 N.Y.S.3d 665 ; see Matter of Merchant v. Caldwell, 198 A.D.3d 782, 783, 156 N.Y.S.3d 254 ; Matter of Gonzalez v. Santiago, 167 A.D.3d 887, 889, 90 N.Y.S.3d 134 ). The best interests of the child are determined by assessing the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). The Family Court's determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Voland v. Stalker, 113 A.D.3d 1010, 1010, 979 N.Y.S.2d 715 ; ...