Fanelli v. Fanelli

• Decision Date: 30 May 1995
• Citation: 627 N.Y.S.2d 425,215 A.D.2d 718
• Parties: Laura FANELLI, Respondent, v. Richard FANELLI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 425

627 N.Y.S.2d 425

215 A.D.2d 718

Laura FANELLI, Respondent, v. Richard FANELLI, Appellant.

Supreme Court, Appellate Division Second Department.

May 30, 1995.

Ehrhardt & Navaretta, Melville (James T. Ehrhardt, of counsel), for appellant.

Abraham Hecht, Forest Hills, for respondent.

Before BALLETTA, J.P., and O'BRIEN, THOMPSON and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Queens County (Durante, J.), dated January 18, 1994, which (1) awarded the plaintiff wife sole custody of the parties' infant child, (2) directed the husband to pay child support in the weekly sum of $100 plus expenses for child care, health, hospital, and dental care for the child not covered by insurance, (3) directed the husband to return to the wife certain items of marital property and jewelry, and (4) awarded the wife $4,250.

ORDERED that the judgment is modified, on the law and the facts, by deleting from the fourth decretal paragraph thereof the language: "plus expenses for child care" and substituting therefor the following language: "plus 60% of the expenses for child care"; as so modified the judgment is affirmed, with costs to the respondent.

Laura Fanelli, the plaintiff wife, and Richard Fanelli, the defendant husband, were married on April 26, 1986, and had one child, Nicholas, born on March 31, 1989. The parties separated in September 1990, and, for the first few months thereafter, they shared custody of Nicholas. However, on December 1, 1990, the wife relinquished physical custody of Nicholas to the husband subject to the wife seeing the child twice a week. This arrangement continued until August 1992 when both parties moved for temporary legal custody. On December 12, 1992, the court awarded temporary custody of the child to the wife with visitation to the husband. The judgment of divorce dated January 18, 1994, granted permanent custody to the wife. The husband contends that the court erred in awarding custody of Nicholas to the wife. We disagree.

Generally stated, any determination of child custody must be based upon "what is for the best interest of the child and what will best promote [the child's] welfare and happiness" (Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Coyne v. Coyne, 150 A.D.2d 573, 575, 541 N.Y.S.2d 448; Matter of Robert T.F. v. Rosemary F., 148 A.D.2d 449, 538 N.Y.S.2d 605). In this regard, the courts will often consider a number of different factors of varying degrees of importance including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child's desires, (4) the relative fitness of the parents, (5) the quality of the home environment, (6) the parental guidance given to the child, (7) the parent's financial status, and (8) his or her ability to provide for the child's emotional and intellectual development (see, Kuncman v. Kuncman, 188 A.D.2d 517, 518, 591 N.Y.S.2d 349; Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863; Matter of Garvin v. Garvin, 176 A.D.2d 318, 319, 574 N.Y.S.2d 760).

In reviewing an award of custody, an appellate court must be mindful that a custody determination is a matter entrusted to the discretion of the trial court, and its decision is entitled to great deference, particularly because any determination turns in large part upon the trial court's observation of demeanor and its assessment of the credibility, character, temperament, and sincerity of the parties involved (see, Eschbach v. Eschbach, supra, at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Del Papa v. Del Papa, 172 A.D.2d 798, 569 N.Y.S.2d 170; Nir v. Nir, 172 A.D.2d 651, 568 N.Y.S.2d 452; Matter of Diane L. v. Richard L., 151 A.D.2d 760, 761, 542 N.Y.S.2d 783; Matter of Coyne v. Coyne, supra; Matter of Robert T.F. v. Rosemary F., supra; Leistner v. Leistner, 137 A.D.2d 499, 500, 524 N.Y.S.2d 243).

Based upon our review of the record in light of the above principles, we are satisfied that the court correctly determined that the best interests of Nicholas would be served by granting the wife sole custody of the child. We note that while the original agreement between the parties placing custody of Nicholas with the father is entitled to great consideration (see, Eschbach v. Eschbach, supra, at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260), "[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest[s]" (see, Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765).

This statement is particularly true in this case where there is a serious question as to whether the initial arrangement was voluntarily agreed to by the wife. In addition, the court did not err in accepting the recommendations of the court-appointed experts that the wife be granted custody rather than those of the husband's experts since the husband's experts never interviewed the wife (see, Matter of Renee B., 204 A.D.2d 57, 58, 611 N.Y.S.2d 831; Walden v. Walden, 112 A.D.2d 1035, 1037, 492 N.Y.S.2d 827).

Finally, the evidence showed that for the two years during which he had custody of Nicholas, the husband consistently and systematically restricted the wife's visitation with...