Guinan v. Guinan
| Decision Date | 21 June 1984 |
| Citation | 477 N.Y.S.2d 830,102 A.D.2d 963 |
| Parties | John F. GUINAN, Appellant, v. Cheryl Ann GUINAN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Hinman, Howard & Kattell, Binghamton (James M. Hayes, Binghamton, of counsel), for appellant.
Chernin & Gold, Binghamton (Bruno Colapietro, Binghamton, of counsel), for respondent.
Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.
Appeal from an order of the Family Court of Broome County, entered March 31, 1983, which awarded the parties joint custody of their three children with primary physical custody to defendant.
The parties were married and have three children, born in 1970, 1972 and 1976. They lived together in Endwell, Broome County, until June of 1981, when plaintiff moved to Philadelphia, Pennsylvania, to pursue a job opportunity. Soon thereafter, the parties agreed to formally separate and executed a written separation agreement providing for joint custody for a period of one year, with physical custody to defendant. The agreement further provided that the parties would negotiate regarding permanent custody and that, should the parties be unable to agree, the matter would be determined by the appropriate court. In September of 1982, plaintiff commenced this action for divorce and for custody of the children. The issue of custody was transferred to Family Court for a hearing. Family Court ordered joint custody with primary physical custody to defendant. Plaintiff appeals.
Initially, plaintiff argues that Family Court failed to adequately set forth the facts supporting its decision to award primary physical custody to defendant. We agree. Family Court found that each parent was devoted to the children and went to great lengths to provide for their needs, and that the children appeared to be happy, healthy, emotionally stable and affectionate toward both parents. Such findings may well support the award of joint custody. However, Family Court failed to make any findings to explain why it chose to award the primary physical custody of the children to defendant other than rejecting one of plaintiff's allegations regarding defendant (see Matter of Jones v. Jones, 92 A.D.2d 632, 459 N.Y.S.2d 946; Matter of Payette v. Payette, 91 A.D.2d 733, 734, 457 N.Y.S.2d 1000). Since the record is sufficiently complete to permit this court to make a determination, we will do so in the interest of judicial economy and to avoid further delay (Matter of Milton v. Dennis, 96 A.D.2d 628, 464 N.Y.S.2d 874; Matter of Jones v. Jones, supra ). In so doing, we are cognizant of the principle that appellate courts should be reluctant to substitute their own evaluations of what the evidence dictates in terms of child custody for that of the trial court (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Nonetheless, the trial court's exercise of discretion in making child custody awards must have a sound and substantial basis in the record examined in light of the best interest of the child (Matter of Payette v. Payette, supra ).
In this case, the evidence indicates that each party is a fit, competent and loving parent. The record reveals numerous reasons to support the award of primary custody to defendant. First of all, the children have been residing with her since June of 1981 and appear to be happy, healthy and emotionally well adjusted. The stability achieved by continuing such custody arrangement is an important factor to be considered (see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765). The evidence also indicates that defendant spends a substantial amount of time with the children. While she does participate in some activities on her own such as attending school, the majority of her time revolves around the children. She not only encourages them in their educational and extracurricular activities, but actively participates in such activities. While the evidence indicates that plaintiff also involves himself in the lives of the children, he has a regular job and, if awarded custody, would delegate much of the daily supervision of the...
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