Feliccia v. Spahn

• Citation: 968 N.Y.S.2d 893,2013 N.Y. Slip Op. 05452,108 A.D.3d 702
• Parties: In the Matter of Lynda Adele FELICCIA, respondent, v. Justin M. SPAHN, appellant.
• Decision Date: 24 July 2013
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 702
968 N.Y.S.2d 893
2013 N.Y. Slip Op. 05452

In the Matter of Lynda Adele FELICCIA, respondent,
v.
Justin M. SPAHN, appellant.

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

July 24, 2013.

John A. Reno, Deer Park, N.Y., for appellant.

Theresa A. Mari, Hauppauge, N.Y., attorney for the children.

[108 A.D.3d 702]In two related child custody proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from stated portions of an order of the Family Court, Suffolk County (Lechtrecker, Ct.Atty.Ref.), dated August 31, 2012, which, inter alia, after a hearing, granted the mother's petition to modify a prior order of the same court dated July 19, 2007, so as to award her sole legal and residential custody of the parties' children, and, in effect, denied his cross petition to modify the prior order so as to award him sole legal and residential custody of the subject children.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

“Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child” ([108 A.D.3d 703]Matter of Strand–O'Shea v. O'Shea, 32 A.D.3d 398, 398, 819 N.Y.S.2d 109;see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Matter of Lovitch v. Lovitch, 64 A.D.3d 710, 712, 884 N.Y.S.2d 430;Matter of Fallarino v. Ayala, 41 A.D.3d 714, 714–715, 838 N.Y.S.2d 176). “[A] court's paramount concern in any custody dispute is whether, under the totality of the circumstances, a transfer of custody is in the best interests of the child” ( Musachio v. Musachio, 53 A.D.3d 600, 601, 862 N.Y.S.2d 376;see Eschbach v. Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Cuccurullo v. Cuccurullo, 21 A.D.3d 983, 984, 801 N.Y.S.2d 360;Neuman v. Neuman, 19 A.D.3d 383, 384, 796 N.Y.S.2d 403). “Since custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, the findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Conforti v. Conforti, 46 A.D.3d 877, 877–878, 848 N.Y.S.2d 359;see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;

[968 N.Y.S.2d 894]

Matter of Fallarino v. Ayala, 41 A.D.3d at 715, 838 N.Y.S.2d 176).

Contrary to the...