Angelova v. Ruchinsky, 2014-04166, 2014-04688

• Decision Date: 18 March 2015
• Docket Number: 2014-04166, 2014-04688
• Parties: Yuliya ANGELOVA, respondent, v. Vladislav RUCHINSKY, appellant.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 828

6 N.Y.S.3d 97

2015 N.Y. Slip Op. 02081

Yuliya ANGELOVA, respondent

v.Vladislav RUCHINSKY, appellant.

2014-04166, 2014-04688

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

March 18, 2015.

Vladislav Ruchinsky, Brooklyn, N.Y., appellant pro se.

Yuliya Angelova, Hewlett, N.Y., respondent pro se.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.

Opinion

In an action for a divorce and ancillary relief, the defendant appeals (1) from a qualified medical child support order of the Supreme Court, Queens County (Greco, Jr., J.), entered April 1, 2014, which directed that the parties' child be enrolled in the group health insurance plan available through the defendant's employer, and (2), as limited by his brief, from so much of a judgment of the same court entered April 1, 2014, as, upon (a) a decision of the same court dated January 4, 2013, made after a nonjury trial, (b) a further decision of the same court dated March 21, 2013, and (c) the qualified medical child support order entered April 1, 2014, awarded sole legal and residential custody of the parties' child to the plaintiff and only awarded him certain visitation, directed the defendant to pay the sum of $1,135.61 per month in child support, and directed that the parties' child be enrolled in the group health insurance plan available through the defendant's employer.

ORDERED that the appeal from the qualified medical child support order is dismissed; and it is further,ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the qualified medical child support order must be dismissed, as no appeal lies as of right from an order which does not decide a motion made on notice (see CPLR 5701[a][2] ), and we decline to grant leave to appeal in light of the entry of a final judgment in this matter (see generally Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the qualified medical child support order have been reviewed on the appeal from the judgment (see CPLR 5501[a][1] ).

An award of custody must be based upon the best interests of the child (see Matter of Archibald M. v. Georgette S., 110 A.D.3d 811, 811, 972 N.Y.S.2d 671 ; Matter of McDonough v. McDonough, 73 A.D.3d 1067, 1068, 899 N.Y.S.2d 892 ; Matter of Dwyer–Hayde v. Forcier, 67 A.D.3d 1011, 889 N.Y.S.2d 650 ). In determining the best interests of the child, the court must evaluate the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Anwar v. Sani, 78 A.D.3d 827, 827, 910 N.Y.S.2d 656 ). “The factors to be considered in making a determination with respect to the best interests of the child include ‘the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent’ ” (matteR of yearwOod v. yearWOod, 90 a.d.3D 771, 773–774, 935 n.y.s.2D 578, quoting Matter of Elliott v. Felder, 69 A.D.3d 623, 623, 892 N.Y.S.2d 491 ; see Eschbach v. Eschbach, 56 N.Y.2d at 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Along with these factors, the court must also “ ‘consider the stability and continuity afforded by maintaining the present arrangement’ ” (Matter of McDonough v. McDonough, 73 A.D.3d at 1068, 899 N.Y.S.2d 892, quoting Matter of Lightbody v. Lightbody, 42 A.D.3d 537, 537–538, 840 N.Y.S.2d 131 ). “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, and will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Jackson v. Coleman, 94 A.D.3d 762, 763, 941 N.Y.S.2d 273 ; see Matter of Solovay v. Solovay, 94 A.D.3d 898, 899, 941 N.Y.S.2d 712 ; Matter of Ross v. Ross, 86 A.D.3d 615, 616, 928 N.Y.S.2d 303 ).

“ ‘[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion’ ” (Matter of Solovay v. Solovay, 94 A.D.3d at 899, 941 N.Y.S.2d 712, quoting Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 ). It is not appropriate, however, where the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the child (see Matter of Solovay v. Solovay, 94 A.D.3d at 899, 941 N.Y.S.2d 712 ; Matter of Conway v. Conway, 89 A.D.3d 936, 936–937, 933 N.Y.S.2d 75 ; Matter of Edwards v. Rothschild, 60 A.D.3d 675, 676–677, 875 N.Y.S.2d 155 ).

Here, a sound and substantial basis in the record exists for the...