D'Ambra v. D'Ambra

• Decision Date: 27 April 2012
• Citation: 943 N.Y.S.2d 698,94 A.D.3d 1532,2012 N.Y. Slip Op. 03319
• Parties: Brenda L. D'AMBRA, Plaintiff–Appellant, v. Richard T. D'AMBRA, Defendant–Respondent.Dean J. Fero, Attorney for the Children, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03319

94 A.D.3d 1532

943 N.Y.S.2d 698

Brenda L. D'AMBRA, Plaintiff–Appellant,

v.Richard T. D'AMBRA, Defendant–Respondent.Dean J. Fero, Attorney for the Children, Appellant.

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

April 27, 2012.

Davidson Fink, LLP, Rochester (Donald A. White of Counsel), for Plaintiff–Appellant.

Dean J. Fero, Attorney for the Children, Rochester, Appellant Pro Se.

Samuel A. Dispenza, Jr., East Rochester (Terrence G. Barker of Counsel), for Defendant–Respondent.

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

In this matrimonial action, plaintiff wife and the Attorney for the Children (AFC) appeal from a judgment of divorce that “incorporated and merged” an amended decision and order issued by Supreme Court following a trial on issues relating to custody of the parties' two children and equitable distribution. With respect to custody, the court awarded the parties joint custody with primary physical residence to the wife and visitation to defendant husband on alternate weekends until Monday morning, every Wednesday from 4:00 p.m. to 7:30 p.m., and Sunday afternoons from 3:00 p.m. to 7:00 p.m. on the weekends during which the husband does not otherwise have visitation. The court further determined that, if the husband obtained a “suitable residence,” i.e., an appropriately sized and equipped apartment within five miles of the wife's residence, within six months of its amended decision and order, the residency schedule would be adjusted to afford the parties equal time with the children. Finally, with respect to custody, the court ordered that the parent whose residency period is beginning shall be responsible for picking up the children from the other parent's residence.

The wife challenges the court's residency schedule on several grounds. She initially contends that the court erred in determining that the husband shall automatically be entitled to equal time with the children if he obtained a “suitable residence” within six months of the amended decision and order. That contention is moot, however, inasmuch as the husband did not obtain a “suitable residence” within the requisite six months, and indeed still has not done so. The wife further contends, and the AFC agrees, that the court erred in awarding the father visitation on Sunday afternoons with the children on the weekends that he does not have residency. According to the wife, the schedule deprives her of quality time with the children because she never has the children for an entire weekend. We reject that contention. Because the wife is permanently disabled and does not work, the court's residency schedule affords her ample quality time with the children ( see generally Chamberlain v. Chamberlain, 24 A.D.3d 589, 592–593, 808 N.Y.S.2d 352). She has the children every day after school and most week nights, as well as on alternate weekends until Sunday afternoon. “It is well settled that visitation issues are determined based on the best interests of the children ... and that trial courts have ‘broad discretion in fashioning a visitation schedule’ ” ( Veronica S. v. Philip R.S., 70 A.D.3d 1459, 1459, 894 N.Y.S.2d 644). Affording deference to the court's determination and its “first-hand assessment” of the parties ( Matter of Thayer v. Thayer, 67 A.D.3d 1358, 1359, 888 N.Y.S.2d 693), we cannot conclude that the court erred in awarding visitation to the husband on alternate Sunday afternoons.

The wife further challenges the custody provisions of the amended decision and order insofar as it requires her to transport the children from the husband's residence to school on alternate Monday mornings. It appears from the wife's brief on appeal, however, that her challenge may be moot. According to the wife's brief, the court clarified its amended decision and order after it was rendered to make clear that the transportation provision did not apply to Monday mornings, and the husband has agreed to provide such transportation. In any event, we conclude that, because the record demonstrates that the wife is capable of operating a motor vehicle without difficulty despite her disability, the court did not err in requiring her to share equally in the transportation burden associated with the residency schedule on alternate Monday mornings. In addition, we reject the AFC's contention that the court should have required the husband to provide all of the transportation for visitation and residency. We also reject the AFC's contentions that the court erred in awarding residency of the children to the husband on alternate school breaks and holidays, and in failing to direct the parties to attend the Assisting Children through Transition program ( see generally Veronica S., 70 A.D.3d at 1459, 894 N.Y.S.2d 644).

With respect to equitable distribution, there is no merit to the wife's contention that the court...