Vickie F. v. Joseph G.

195 A.D.3d 1064

149 N.Y.S.3d 671

VICKIE F., Respondent,

v.JOSEPH G., Appellant.

528312

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

Calendar Date: April 27, 2021

Decided and Entered: June 3, 2021

The Colwell Law Group LLC, Albany (Kevin M. Colwell of counsel), for appellant.

Jean M. Mahserjian Esq., PC, Halfmoon (Jennifer R. Morton of counsel), for respondent.

Christopher J. Obstarczyk, Latham, attorney for the child.

Nicole R. Rodgers, Saratoga Springs, attorney for the child.

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

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from a judgment of the Supreme Court (Jensen, J.), entered May 15, 2019 in Saratoga County, granting, among other things, sole legal and physical custody of the parties' children to plaintiff, upon a decision of the court.

Plaintiff (hereinafter the mother) and defendant (hereinafter the father) were married in 2001 and are the parents two children (born in 2002 and 2004). In 2018, the mother commenced this action for divorce (see Domestic Relations Law § 170[7] ). Following joinder of issue, the father and the mother each moved for an order awarding them, among other things, temporary and exclusive possession of the marital home and temporary physical custody of the children. A three-day hearing ensued on the issue of temporary and exclusive possession of the marital residence and, in December 2018, Supreme Court granted the mother temporary exclusive use of the residence and further ordered, among other things, the parties to share temporary joint legal custody of the children with primary physical placement with the mother and parenting time to the father. The father appealed and, upon motion, this Court stayed those portions of the December 2018 order that, as relevant here, awarded temporary exclusive possession of the marital residence to the mother and granted the mother temporary physical custody of the children.¹ In April 2019, following a seven-day trial that included Lincoln hearings with both children, Supreme Court issued a decision granting the mother, among other things, sole legal and physical custody of the children, with specified parenting time to the father, and, pursuant to a stipulation of the parties, awarded the mother possession of the marital residence.² Supreme Court thereafter issued a judgment of divorce, which incorporated the terms of its April 2019 decision. The father appeals.³

Initially, we are unpersuaded by the father's contention that he was denied procedural due process by being denied a full and fair opportunity to present evidence at the pendente lite hearing and the subsequent trial. Generally speaking, "it is error as a matter of law to make an order respecting custody based on controverted allegations without having had the benefit of a full hearing" ( Matter of Williams v. Williams, 35 A.D.3d 1098, 1099–1100, 827 N.Y.S.2d 328 [2006] [internal quotation marks and citations omitted]; accord Matter of Varner v. Glass, 130 A.D.3d 1215, 1216, 13 N.Y.S.3d 671 [2015] ). With respect to the three-day pendente lite hearing, the father's due process challenge was rendered moot as Supreme Court's issuance of the final judgment of divorce superseded the prior pendente lite order (see Giannuzzi v. Kearney, 127 A.D.3d 1350, 1351, 4 N.Y.S.3d 561 [2015] ; Batson v. Batson, 277 A.D.2d 750, 751, 716 N.Y.S.2d 137 [2000] ).

With respect to the trial, the mother and the father were the only two witnesses to testify.⁴ They were each subject to extensive direct and cross-examination and were able to submit numerous exhibits into evidence. Although Supreme Court did limit the father from providing certain additional direct testimony as it pertained to the children, it did so only after the father had already provided a full day of testimony pertaining to custodial issues – which included testimony with respect to applicable best interests factors such as his past performance as a parent, the parties' financial resources and their respective relationships with the children, as well as testimony regarding disputed allegations with respect to his alcohol use, domestic violence and his supervision of the younger child's relationship with her boyfriend. These matters were also revisited during cross-examination and in his redirect testimony in reply thereto. Accordingly, we find that Supreme Court's ruling was an appropriate exercise of the court's discretionary control over the trial and its calendar and was an effort to avoid repetitive testimony (see Matter of Braswell v. Braswell, 80 A.D.3d 827, 829, 914 N.Y.S.2d 749 [2011] ; see generally Murray–Gardner Mgt. v. Iroquois Gas Transmission Sys., 251 A.D.2d 954, 956, 674 N.Y.S.2d 820 [1998] ; compare Matter of Stukes v. Ryan, 289 A.D.2d 623, 624, 733 N.Y.S.2d 541 [2001] ), as opposed to a disdainful attempt to limit the father's ability to introduce evidence or otherwise interfere with his due process rights (compare Matter of Varner v. Glass, 130 A.D.3d at 1216, 13 N.Y.S.3d 671 ; Matter of Middlemiss v. Pratt, 86 A.D.3d 658, 659, 926 N.Y.S.2d 720 [2011] ). Ultimately, given the voluminous record before us – which included, among other things, the children's school and medical records, text messages and social media posts, Lincoln hearings with both children and a forensic custody evaluation report – we are satisfied that Supreme Court possessed sufficient information to render a fully informed determination as to the custody arrangement that would serve the best interests of the children (see Matter of Gerber v. Gerber, 133 A.D.3d 1133, 1134–1135, 21 N.Y.S.3d 386 [2015], lv denied 27 N.Y.3d 902, 2016 WL 1250304 [2016] ; Matter of Gordon L. v. Michelle M., 296 A.D.2d 628, 630, 745 N.Y.S.2d 105 [2002] ; compare Matter of Varner v. Glass, 130 A.D.3d at 1216, 13 N.Y.S.3d 671 ; Matter of Richardson v. Massey, 127 A.D.3d 1277, 1278, 6 N.Y.S.3d 727 [2015] ).

Turning to the merits, when rendering a custody determination, the paramount concern is the best interests of the children and, in conducting such an analysis, courts must give consideration to such factors as each parent's past performance and relative fitness, willingness to foster the children's positive relationship with the other parent, ability to maintain a stable home environment and ability to provide for the children's intellectual and emotional development and overall well-being (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Antonella GG. v. Andrew GG., 169 A.D.3d 1188, 1189, 94 N.Y.S.3d 687 [2019] ). Great deference is accorded to the trial court's fact-finding and credibility determinations, and its findings will not be disturbed as long as they are supported by a sound and substantial basis in the record (see Matter of Kelly CC. v. Zaron BB., 191 A.D.3d 1101, 1103, 141 N.Y.S.3d 559 [2021] ; Elizabeth B. v. Scott B., 189 A.D.3d 1833, 1835, 137 N.Y.S.3d 574 [2020] ).

Although both parents clearly love the children and are devoted to providing for their best interests, there is a sound and substantial basis in the record supporting Supreme Court's award of sole legal and physical custody to the mother. The evidence at the trial established that, in 1999, prior to the parties' April 2001 marriage, the mother purchased what would later become the marital residence and, throughout the duration of the marriage, was the primary wage earner and primary caretaker of the children, providing for their educational, medical and financial needs while also arranging for and attending their extracurricular activities. Although the father often transported the children to and from day care and school, prepared meals and was the caregiver for the children when the mother was traveling for work, he did not dispute that, prior to the commencement of the subject divorce action, it was the mother who had the primary role in attending to the children's overall needs.⁵

In September 2017, the mother and the father had a physical altercation at a pool party at the marital residence wherein the father attempted to forcibly grab the mother and throw her in the pool. As a result, the mother suffered bruising where the father had attempted to restrain her, prompting her to commence this divorce action. Following commencement of the action, the parties continued to reside together in the marital residence, but their relationship deteriorated to the point where they were unable to effectively communicate with one another for the sake of the children, rendering a joint custodial arrangement unfeasible (see Antonella GG. v. Andrew GG., 169 A.D.3d at 1189, 94 N.Y.S.3d 687 ; Matter of Jarren S. v. Shaming T., 117 A.D.3d 1109, 1111, 984 N.Y.S.2d 484 [2014] ; Matter of Danielle TT. v. Michael UU., 90 A.D.3d 1103, 1104 n., 933 N.Y.S.2d 449 [2011] ). The mother and the father regularly argued, the father frequently made denigrating and disparaging remarks to the mother in front of the children, they were unable to agree on how to supervise and discipline the...