Coyne v. Coyne

• Decision Date: 15 May 1989
• Citation: 150 A.D.2d 573,541 N.Y.S.2d 448
• Parties: In the Matter of Janice COYNE, Appellant, v. Michael COYNE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 448

541 N.Y.S.2d 448

150 A.D.2d 573

In the Matter of Janice COYNE, Appellant, v. Michael COYNE, Respondent.

Supreme Court, Appellate Division Second Department.

May 15, 1989.

Jerald Fiedelholtz, P.C., New Windsor (Vern Lazaroff, of counsel), for appellant.

Silver, Forrester, Schisano, Lesser & O'Donnell, Newburgh (Sheila Callahan O'Donnell, of counsel), for respondent.

John F. Clennan, Law Guardian, for infant daughter.

Before MOLLEN, P.J., and THOMPSON, KUNZEMAN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In custody proceeding for modification of so much of a stipulation dated September 2, 1987, as awarded custody of the infant daughter to the mother and granted the father visitation, the petitioner mother appeals from an order of the Family Court, Orange County (Ludmerer, J.), entered December 21, 1988, which, after a hearing, inter alia, granted the father's application to transfer custody of the parties' infant daughter to him.

ORDERED that the order is reversed, on the law and the facts and in the exercise of discretion, without costs or disbursements, the application is denied, and the terms of the parties' stipulation dated September 2, 1987, with respect to custody and visitation are reinstated.

Custody of the parties' infant daughter Rachel, born November 27, 1979, was granted to the mother with visitation rights to the father pursuant to an oral stipulation of the parties entered in the minutes of a court proceeding on August 29, 1984. In a court proceeding on September 2, 1987, the parties entered into an oral stipulation concerning the father's visitation rights. The mother subsequently moved to suspend the father's visitation with Rachel on the ground that visitation with the father was detrimental to Rachel's emotional welfare. The father cross moved for a transfer of custody of the infant to him claiming that the mother had interfered with his visitation rights and, due to her hostility toward him, had adversely affected Rachel's emotional and psychological well-being. Following a hearing at which several mental health professionals testified, and an in camera interview with the infant, the Family Court, inter alia, transferred custody of the infant from the mother to the father. This appeal ensued.

Initially, we note that our authority in matters of custody is as broad as that of the trial court (see, Matter of Louise E.S. v. W. Stephen S., 64 NY2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091; Leistner v. Leistner, 137 A.D.2d 499, 524 N.Y.S.2d 243). In this regard, the trial court's determination based upon a first-hand assessment of the credibility of the witnesses and of the character and temperament of the parents is to be accorded great deference on review and should not be set aside where it is in conformity with the evidence (see, Matter of Louise E.S. v. W. Stephen S., supra, 64 N.Y.2d at 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091; Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Skolnick v. Skolnick, 142 A.D.2d 570, 530 N.Y.S.2d 235). On the other hand, "[a]n appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record" (see Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; see also, Skolnick v. Skolnick, supra ). The instant determination to transfer custody lacks a sound and substantial basis in the record and we, therefore, reverse and reinstate the original custody and visitation provisions of the September 2, 1987, stipulation.

It is beyond cavil that the totality of the circumstances are to be considered in determining whether custody should be changed, with the pre-eminent concern being the best interest of the child (see, Eschbach v. Eschbach, supra, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93, 447 N.Y.S.2d 893, 432 N.E.2d 765). In the absence of extraordinary circumstances, priority should be given to the parent who was awarded custody by voluntary agreement (see, Eschbach v. Eschbach, supra; Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 251, 401 N.Y.S.2d 168, 372 N.E.2d 4; Robert C.R. v. Victoria R., 143 A.D.2d 262, 264, 532 N.Y.S.2d 176). While such an agreement is not determinative of whether a change of custody is warranted, it is weighted heavily to ensure stability in the child's life.

The parties' daughter, who was nine years old at the time...