Theodore P. v. Debra P.

209 A.D.3d 1146

175 N.Y.S.3d 633

THEODORE P., Appellant,

v.DEBRA P., Respondent.

534067

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

Calendar Date: September 9, 2022

Decided and Entered: October 20, 2022

Jean M. Mahserjian, Esq., PC, Clifton Park (Katrin E. Falco of counsel), for appellant.

Rhoades, Cunningham & McFadden, PLLC, Latham (John R. McFadden of counsel), for respondent.

Elena Jaffe Tastensen, Saratoga Springs, attorney for the child.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Ceresia, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeal from a judgment of the Supreme Court (James E. Walsh, J.), entered March 11, 2021 in Saratoga County, granting, among other things, primary physical custody of the parties’ child to defendant, upon a decision of the court.

Plaintiff (hereinafter the father) and defendant (hereinafter the mother) are the parents of a child (born in 2007). Pursuant to a March 2018 separation agreement – which was to be incorporated but not merged into a subsequent judgment of divorce – the parties agreed to joint legal custody of the child and to share physical custody on a "substantially equal basis in a mutually acceptable manner." The father commenced this divorce action in November 2019 requesting such relief, while the mother joined issue seeking, among other things, a judgment granting her sole legal and physical custody and an order directing the father to attend therapeutic counseling with the child. A trial limited to the issue of custody and parenting time ensued, during which Supreme Court (Jensen, J.) denied the father's motion for a directed verdict (see CPLR 4401 ). Following a Lincoln hearing, the court found that the child's best interests were served by awarding primary physical custody to the mother and parenting time to the father one evening per week and on alternating weekends. The court further determined that the parties should have modified joint legal custody of the child, endowing the mother with final decision-making authority. Thereafter, Supreme Court (Walsh, J.) incorporated the custody determination into the ensuing judgment of divorce.¹ The father appeals.

Turning first to the father's procedural challenges, he argues that Supreme Court (Jensen, J.) abused its discretion in excluding evidence of his relationship with the child before the parties entered the separation agreement. According to the father, such evidence would have revealed that he was the child's primary caregiver for much of her life. Having failed to lodge an appropriate objection at trial, however, this issue is unpreserved for appellate review (see CPLR 4017, 5501[a][3] ; Matter of Thomas FF. v. Jennifer GG., 143 A.D.3d 1207, 1208, 39 N.Y.S.3d 547 [3d Dept. 2016] ). Furthermore, even though the father is correct that a court should not unduly restrict proof relevant to the best interests of the child (see id. ; Matter of Tarrance v. Mial, 22 A.D.3d 965, 966, 803 N.Y.S.2d 718 [3d Dept. 2005] ), the mother — in an offensive posture with respect to custody — "relied solely upon recent conduct and/or circumstances as a basis to" challenge the custody provision in the separation agreement ( Matter of Wilson v. Hendrickson, 88 A.D.3d 1092, 1093, 931 N.Y.S.2d 170 [3d Dept. 2011] ). Given the court's broad authority to determine the scope of proof at trial (see id. ; Matter of Tarrance v. Mial, 22 A.D.3d at 966, 803 N.Y.S.2d 718 ; see also Matter of Smith v. O'Donnell, 107 A.D.3d 1311, 1312, 968 N.Y.S.2d 227 [3d Dept. 2013] ), we cannot say that limiting the evidence to that timeframe was an improvident exercise of discretion.

The father's contention that Supreme Court exhibited bias against him during the trial is also unpreserved for our review, as he "did not object to [the court's] comments or move for the court's recusal" ( Matter of Brandon E. v. Kim E., 167 A.D.3d 1293, 1295, 89 N.Y.S.3d 771 [3d Dept. 2018] ; see Matter of Philip UU. v. Amanda UU., 173 A.D.3d 1382, 1385, 105 N.Y.S.3d 568 [3d Dept. 2019] ). In any event, we are unpersuaded by his contention in this respect. Although we agree with the father that the trial judge made some unfortunate remarks at trial and erred in some of her evidentiary rulings, particularly with respect to the issue of hearsay, when considering the entirety of the record we are satisfied that the father was given a sufficient opportunity to present his case and received a fair and impartial trial (see Matter of Cameron ZZ. v. Ashton B., 183 A.D.3d 1076, 1081, 123 N.Y.S.3d 737 [3d Dept. 2020], lv denied 35 N.Y.3d 913, 2020 WL 5415202 [2020] ).

As for the father's substantive challenges, he contends, in effect, that Supreme Court erred in proceeding directly to a best interests analysis without first considering whether a change in circumstances occurred since execution of the separation agreement. A party seeking to modify a judicially sanctioned custody arrangement must make a threshold showing of a change in circumstances that warrants an inquiry into whether modification of the arrangement is in the child's best interests (see Matter of Anthony F. v. Christy G., 180 A.D.3d 1197, 1198–1199, 120 N.Y.S.3d 444 [3d Dept. 2020] ; Matter of Ryan v. Nolan, 134 A.D.3d 1259, 1262, 21 N.Y.S.3d 469 [3d Dept. 2015] ). Here, however, that standard does not apply, as the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned (see e.g. Matter of Liska J. v. Benjamin K., 174 A.D.3d 966, 967, 107 N.Y.S.3d 156 [3d Dept. 2019] ; Matter of Whetsell v. Braden, 154 A.D.3d 1212, 1213, 62 N.Y.S.3d 630 [3d Dept. 2017] ; compare Jessica WW. v. Misty WW., 192 A.D.3d 1364, 1366, 144 N.Y.S.3d 246 [3d Dept. 2021] ; Matter of Coley v. Sylva, 95 A.D.3d 1461, 1461, 944 N.Y.S.2d 356 [3d Dept. 2012] ). As such, the separation agreement was but a factor to consider in resolving the custody dispute (see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94–95, 447 N.Y.S.2d 893, 432 N.E.2d 765 [1982] ). In this context, the best interests standard for an initial custody determination applied (see e.g. Matter of Liska J. v. Benjamin K., 174 A.D.3d at 967–968, 107 N.Y.S.3d 156 ; Matter of Whetsell v. Braden, 154 A.D.3d at 1213, 62 N.Y.S.3d 630 ; Porcello v. Porcello, 80 A.D.3d 1131, 1132–1133, 917 N.Y.S.2d 338 [3d Dept. 2011] ). It follows that the court did not err in denying the father's motion for a directed verdict based upon the mother's alleged failure to demonstrate changed circumstances. In any event, we would conclude that such a change in circumstances was demonstrated by the testimony regarding the parties’ inability to effectively communicate about the parenting time schedule and the further deterioration of the child's relationship with the father (see Matter of Cameron ZZ. v. Ashton B., 183 A.D.3d at 1078, 123 N.Y.S.3d 737 ; Matter of Quick v. Glass, 151 A.D.3d 1318, 1319, 56 N.Y.S.3d 657 [3d Dept. 2017] ).

As to the merits, in making a best interests determination, "a court ... consider[s] factors such as each parent's past performance and relative fitness, willingness to foster the [child's] positive relationship with the other parent and ability to maintain a stable home environment and provide for the [child's] well-being" ( Antonella GG. v. Andrew GG., 169 A.D.3d 1188, 1189, 94 N.Y.S.3d 687 [3d Dept. 2019] ; see Herrera v. Pena–Herrera, 146 A.D.3d 1034, 1035, 45 N.Y.S.3d 251 [3d Dept. 2017] ). "Supreme Court's credibility determinations are accorded great deference, and its findings will not be disturbed so long as they are supported by a sound and substantial basis in the record" ( Herrera v. Pena–Herrera, 146 A.D.3d at 1035, 45 N.Y.S.3d 251 [citations omitted]; see Antonella GG. v. Andrew GG., 169 A.D.3d at 1189, 94 N.Y.S.3d 687 ).

Both parties testified at trial, with a focus on the strained relationship between the father and the child. The mother observed that the child was "more reserved or solemn" before parenting time with the father, "leading [her] to believe that [the child] didn't want to go." After the father's parenting time, the child sometimes seemed to the mother to be "angry" and "frustrated." The mother, concerned for the child and the child's relationship with the father, scheduled therapy sessions with two counselors for the child, which the parties occasionally joined. Both parties attended the first session with the second counselor, who indicated that, going forward, only the party that drove the child to the session needed to attend. The father asked if the child wished him to stay at that session. Although the trial record does not disclose the child's response, the father left the session.

Both parties testified to a November 2019 incident at an ice skating rink at which the child became upset with the father. According to the mother, the father physically blocked the child from leaving the facility, prompting the mother to intervene. The child, increasingly distraught, refused to leave the mother's vehicle despite the father's admonition that his parenting time that day had not expired. According to the mother, the father blamed her for the child's reaction, supporting the conclusion that the parties’ relationship was acrimonious, to the child's detriment (see Matter of Rutland v. O'Brien, 143 A.D.3d 1060, 1063, 41 N.Y.S.3d 292 [3d Dept. 2016] ).

The parties acknowledged that they failed to coordinate custody each week as anticipated by the separation agreement, and they therefore resorted to swapping the child each weeknight and on alternating weekends. At trial, the father explained that, from his perspective, therapy was initiated because the child "experience[d] anxiety regarding [the] transition back and forth between the two homes," undermining his assertion that the arrangement was workable. The record reveals that the inherently unstable arrangement here has taken its toll on the child, which, in our view, militates against its maintenance (see Matter of Cecelia BB. v. Frank...