Robinson v. Mustakas

214 A.D.3d 880

185 N.Y.S.3d 302

In the Matter of Jeffrey M. ROBINSON, appellant,

v.Joan G. MUSTAKAS, respondent.

(Proceeding No. 1)

In the Matter of Joan G. Mustakas, respondent,

v.Jeffrey M. Robinson, appellant.

(Proceeding No. 2)

2022–00707

Docket Nos. V–5897–15/21K, V–5897–15/21L

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

Submitted—February 21, 2023

March 22, 2023

Kelley M. Enderley, Poughkeepsie, NY, for appellant.

Feldman, Kleidman, Coffey & Sappe, LLP, Fishkill, NY (Terry D. Horner of counsel), for respondent.

Irene J. Goldsmith, White Plains, NY, attorney for the child.

ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Dutchess County (Tracy C. MacKenzie, J.), dated December 22, 2021. The order, insofar as appealed from, after a hearing, in effect, granted the mother's petition to modify an order of the same court dated January 29, 2019, so as to award her sole custody of the parties’ child to the extent of awarding her sole legal custody of the child, and denied that branch of the father's amended petition which was, in effect, to modify the order dated January 29, 2019, so as to award him final decision-making authority with regard to the child.

ORDERED that the order dated December 22, 2021, is affirmed insofar as appealed from, without costs or disbursements.

The parties have one child together, born in 2012. Pursuant to an order dated January 29, 2019, issued on consent (hereinafter the prior order), the parties were awarded joint legal custody of the child, with final decision-making authority to the mother, the primary custodial parent. In July 2021, the father filed an amended petition seeking, inter alia, in effect, to modify the prior order so as to award him final decision-making authority with regard to the child. Subsequently, the mother filed a petition to modify the prior order so as to award her sole custody of the child. After a hearing, the Family Court, among other things, in effect, granted the mother's petition to the extent of awarding her sole legal custody of the child, and denied that branch of the father's amended petition which was, in effect, to modify the prior order so as to award him final decision-making authority with regard to the child. The father appeals.

A party seeking modification of an existing court-ordered custody arrangement must "show the existence of such a change in circumstances that modification is required to ensure the continued best interests of the child" ( Matter of Connell–Charleus v. Charleus, 192 A.D.3d 890, 890, 140 N.Y.S.3d 752 [internal quotation marks omitted]; see Matter of Errante v. Murry, 172 A.D.3d 711, 712, 99 N.Y.S.3d 379 ). "[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" ( Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 ; see Matter of Connell–Charleus v. Charleus, 192 A.D.3d at 891, 140 N.Y.S.3d 752 ). "Where parents have evidenced an inability to cooperate on matters concerning the child, joint custody is inappropriate" ( Paruchuri v. Akil, 156 A.D.3d 712, 713, 66 N.Y.S.3d 326 ; see Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349 ). "Inasmuch as custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court's findings in this regard, and the court's findings will not be disturbed unless they lack a sound and substantial basis in the record" ( Matter of Tedesco v. Mazzara, 206 A.D.3d 917, 919, 171 N.Y.S.3d 539 [alterations and internal quotation marks omitted]; see Matter of Cook v. Sierra, 190 A.D.3d 732, 733, 135 N.Y.S.3d 868 ).

Here, the record demonstrates that the parties’ relationship continued to deteriorate since the issuance of the prior order, and that the father habitually insulted and belittled the mother when she tried to communicate with him about the child (see Matter of Errante v. Murry, 172 A.D.3d at 713, 99 N.Y.S.3d 379 ). The continued deterioration of the parties’ relationship is a change in circumstances...