Dubuque v. Bremiller

• Decision Date: 30 December 2010
• Citation: 79 A.D.3d 1743,913 N.Y.S.2d 855
• Parties: In the Matter of Steven DUBUQUE, Petitioner-Respondent, v. Shawna M. BREMILLER, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 855

79 A.D.3d 1743

In the Matter of Steven DUBUQUE, Petitioner-Respondent,

v.Shawna M. BREMILLER, Respondent-Appellant.

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

Dec. 30, 2010.

Timothy R. Lovallo, Buffalo, for Respondent-Appellant.

Alan Birnholz, East Amherst, for Petitioner-Respondent.

Alvin M. Greene, Attorney for the Child, Buffalo, for Rose M.D.

PRESENT: MARTOCHE, J.P., SMITH, FAHEY, PERADOTTO, AND GREEN, JJ.

MEMORANDUM:

Respondent mother appeals from an order that, following a hearing, granted thepetition seeking to modify a prior order of custody and visitation by granting sole custody of the parties' daughter to petitioner father and visitation to the mother. Inasmuch as the mother does not challenge Family Court's finding that a change in circumstances existed, we need only address whether it was in the child's best interests to award sole custody to the father ( see Matter of Bush v. Bush, 74 A.D.3d 1448, 1449, 902 N.Y.S.2d 697, lv. denied 15 N.Y.3d 711, 912 N.Y.S.2d 575, 938 N.E.2d 1010, 2010 WL 4116959).

We note at the outset "that, although the court failed to comply with CPLR 4213(b) by stating 'the facts it deem[ed] essential' in [awarding sole custody to the father], the record is sufficient to permit us to make such findings" ( Matter of Chapman v. Tucker, 74 A.D.3d 1905, 1906, 903 N.Y.S.2d 640; see Matter of Vezina v. Vezina, 8 A.D.3d 1047, 778 N.Y.S.2d 602). "Contrary to the mother's contention, the court did not abuse its discretion in awarding the father [sole custody of the child]. Generally, a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record ... We see no basis to disturb the court's determination inasmuch as it was based on the court's credibility assessments of the witnesses and is supported by a sound and substantial basis in the record" ( Matter of Krug v. Krug, 55 A.D.3d 1373, 1374, 865 N.Y.S.2d 450 [internal quotation marks omitted]; see Matter of Thayer v. Thayer, 67 A.D.3d 1358, 888 N.Y.S.2d 693).

We have considered the mother's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.