Bazant v. Bazant

• Decision Date: 15 May 1981
• Citation: 80 A.D.2d 310,439 N.Y.S.2d 521
• Parties: Maria Klaus BAZANT, Respondent-Appellant, v. Vlastimil BAZANT, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 521

439 N.Y.S.2d 521

80 A.D.2d 310

Maria Klaus BAZANT, Respondent-Appellant, v. Vlastimil BAZANT, Appellant-Respondent.

Supreme Court, Appellate Division Fourth Department.

May 15, 1981.

Walsh & Levine, Blasdell, for appellant-respondent; Alan H. Levine, Blasdell, of counsel.

Miller, Bouvier, O'Connor & Cegielski, Buffalo, for respondent-appellant; Beth Hoffman, Buffalo, of counsel.

Before DILLON, P. J., and CARDAMONE, SIMONS, DENMAN and SCHNEPP, JJ.

CARDAMONE, Justice.

Plaintiff and defendant are doctors married to each other, whose career-oriented lives have led to this litigation in which each seeks custody of their sole issue, Karen, a seven-year old daughter. Plaintiff, Maria Bazant, commenced a separation action, later amended to divorce, and custody action against defendant, her husband, Vlastimil Bazant in New York in August 1978. One month later defendant, who had a teaching position in Canada, commenced a proceeding in Unified Family Court in Saskatoon, Saskatchewan, which also sought custody of the couple's daughter whom he had with him at that time. Following the 1980 trial of their matrimonial dispute in Erie County Supreme Court, the Trial Court found that since neither party had proved cruel or inhuman treatment against the other, neither was entitled to a divorce. No appeal has been taken with respect to this aspect of the case. The judgment of the Trial Court also awarded the parties joint custody of Karen, failed to grant defendant a separation from plaintiff on the ground of abandonment, and ordered defendant to reimburse $3,017.26 as counsel fees which plaintiff incurred in defending the custody proceeding in Canada. From this part of the judgment, the defendant has appealed. Plaintiff has cross-appealed claiming that she should have been awarded sole custody of their child.

Maria Bazant, a physician who emigrated from Czechoslovakia in 1969, practices dermatology in Buffalo. Defendant, Vlastimil Bazant, came to the United States from Czechoslovakia in 1965 and practiced dentistry and also held a teaching position as a clinical instructor at the State University of New York at Buffalo. These parties were married in 1972 and Karen was born in 1973. Shortly after their marriage the parties purchased a home in Buffalo. In the fall of 1978 when defendant concluded that he had no chance to become a full professor, he signed a two-year contract as an Associate Professor and Chairman of the Pathology Department at the School of Dentistry of the University of Saskatoon, Saskatchewan, Canada. Initially, plaintiff opposed this move. Later she agreed, but decided to remain in Buffalo for half-a-year when her husband went to Canada in May 1979. When he returned in June she asked for a separation. In mid August when he returned again, he was served with a summons seeking a separation and custody of Karen. Shortly afterwards, defendant took his daughter back to Canada and called his wife to tell her that he was keeping Karen with him. Plaintiff thereupon instituted a proceeding in Supreme Court, Erie County, and on September 25, 1979 was granted temporary custody. Meanwhile, defendant had commenced a proceeding in the Unified Family Court in Saskatoon, also seeking custody. On September 26, 1979 following a hearing in Canada at which both parties were represented by counsel, defendant was directed to return the child to New York. The determination was affirmed upon appeal to the Canadian Court of Appeals. Immediately thereafter defendant returned Karen to her mother.

The first issue that we consider is the appropriateness of joint custody. In his argument seeking sole custody, defendant alleges that the Trial Court erred in not ascertaining and considering Karen's wishes. Testimony at the trial established that Karen had expressed her preference on different occasions to both her parents and to family friends to remain with her father. In light of this uncontroverted testimony by both parties, it was not necessary for the court to interview the child. Interviews with a child are not mandatory (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273-274, 299 N.Y.S.2d 842, 247 N.E.2d 659; Opferbeck v. Opferbeck, 57 A.D.2d 1074, 395 N.Y.S.2d 831, mot. for lv. to app. den. 42 N.Y.2d 810, 399 N.Y.S.2d 1025, 369 N.E.2d 774), and here such an interview would have served no useful purpose (Falkides v. Falkides, 40 A.D.2d 1074, 339 N.Y.S.2d 235). The Trial Court acknowledged Karen's preference and considered it, but correctly refused to allow it to be controlling. The weight to be given a child's preference is within the discretion of the trial court (2 Foster and Freed, Law and the Family, § 29.12). Notwithstanding its finding that both parents were "eminently fitted in every way to bring up the child", the Trial Court was not required to make the child's preference the governing factor; particularly where the child is of tender years. Here, since Karen was only seven years old at the time of trial, she was "not competent to weigh intelligently the factors necessary to make a wise choice on custody" (Martin v. Martin, 74 A.D.2d 419, 427, 427 N.Y.S.2d 1002; Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 249, 401 N.Y.S.2d 168, 372 N.E.2d 4; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 702, 382 N.Y.S.2d 472, 346 N.E.2d 240; Dintruff v. McGreevy, 34 N.Y.2d 887, 888, 359 N.Y.S.2d 281, 316 N.E.2d 716). Further, there was evidence upon which the Trial Court could have found that Karen had been influenced by her father. Various witnesses testified that defendant discussed her custody with Karen or with other people in Karen's presence, and defendant admitted this. On that basis the Trial Court properly disregarded Karen's preference (cf. Obey v. Degling, 37 N.Y.2d 768, 770-771, 375 N.Y.S.2d 91, 337 N.E.2d 601).

Plaintiff contends on her cross-appeal that the Trial Court should not have awarded joint custody but, rather, should have granted her sole custody in view of the geographic separation of the parties between Buffalo and Saskatoon and because of defendant's alleged "bitter feelings toward her". Both parents were deemed "eminently fitted" to raise Karen, and joint custody allows both parents to share legal responsibility, control and physical custody (Braiman v. Braiman, 44 N.Y.2d 584, 589, 407 N.Y.S.2d 449, 378 N.E.2d 1019; Foster and Freed, Joint Custody; A Viable Alternative, 15 Trial No. 5, pp. 26, 28 In any event, except for shared legal responsibility, the award of joint custody was, in effect, a grant of sole custody to plaintiff with liberal visitation rights to defendant. Under the judgment plaintiff has physical custody of Karen during the ten-month school year. Defendant has physical custody of Karen during summer vacation. Christmas and Easter recesses are shared; alternate custody is granted with respect to other holidays.

A custody determination should not be disturbed where there exists a substantial basis in the record to support it (Bistany v. Bistany, 66 A.D.2d 1026, 1026-1027, 411 N.Y.S.2d 728; Matter of Braitsch v. Braitsch, 52 A.D.2d 1073, 1074, 384 N.Y.S.2d 560). Decisions which largely depend upon character assessments as does this one, point up the reason for the settled rule that "the findings of the nisi prius court must be accorded the greatest respect" (Matter of Irene O., 38 N.Y.2d 776, 777, 381 N.Y.S.2d 865, 345 N.E.2d 337). While the geographic separation of the parties is one of the factors to be considered in awarding joint custody, it has not been held controlling (Braiman v. Braiman, supra, 44 N.Y.2d p. 590, 407 N.Y.S.2d 449, 378 N.E.2d 1019; Cmaylo v. Cmaylo, 76 A.D.2d 898, 429 N.Y.S.2d 44). Nor should the geographic separation be held determinative in this case where physical custody of Karen is not apportioned between the parties on a mathematical scale and where modern communication and transportation reduce the effect of geographic barriers. Again, plaintiff presented no evidence to support her argument that the geographic distance between the parties or defendant's feelings about her have made joint custody unworkable. In fact, the record reveals that the parties have shown an increasing ability to cooperate on matters affecting Karen. Thus, the finding that joint custody is in Karen's best interest finds ample support in the record (Dom.Rel.L., §§ 70, 240; cf. Braiman v. Braiman, supra).

Next we consider the failure of the Trial Court to rule on defendant's counterclaim for a separation based upon plaintiff's claimed abandonment. Defendant contends that the Court erred in failing to grant him a separation on that ground since plaintiff refused to move to Canada despite an earlier indication on her part that she would join him. Section 200 (subd. 2) of the Domestic Relations Law provides for separation on the ground of abandonment. The requisite elements for such action are: an unjustified, voluntary separation with the intention of not returning. Generally, the husband has the...