Guzzo v. Guzzo
| Decision Date | 26 December 1978 |
| Citation | 66 A.D.2d 833,411 N.Y.S.2d 408 |
| Parties | Marie GUZZO, Plaintiff, v. Salvatore GUZZO, Respondent, Mary Greco, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gering, Gross & Gross, Elmhurst (M. Joseph Levin, Elmhurst, of counsel), for appellant.
Gould, Weissman & Kronick, Jackson Heights (Neil Weissman, Jackson Heights, of counsel), for respondent.
Before MARTUSCELLO, J. P., and TITONE, SHAPIRO and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the judgment of divorce awarded custody of three minor children, Carol, Marie and Anthony, to the plaintiff mother, the maternal grandmother, appeals from an order of the Supreme Court, Queens County, dated June 9, 1978, which granted the defendant father's application to modify the judgment of divorce and awarded him custody of the children.
Order reversed, on the law and the facts, without costs or disbursements, and action remanded to Special Term for further proceedings in accordance herewith.
A brief statement of the background of the case is in order. The parents, Salvatore and Marie Guzzo, were married in 1955, were separated in 1970, and were divorced in 1974. The judgment of divorce awarded custody to the plaintiff wife, Marie, with reasonable visitation rights to Salvatore, the respondent herein.
For two years, during Marie's terminal illness, appellant resided with Marie and the children in a house owned by Marie and Salvatore as tenants by the entirety. Pursuant to the terms of a prior separation agreement, Marie willed her undivided one-half interest in the marital residence to the children, who, since Marie's death on July 9, 1977, have continuously resided with appellant.
Following Marie's death, respondent petitioned the Family Court for custody of the children. In the interim, respondent and his new wife had taken possession of the family home and appellant and the children had moved out. Following a hearing, the Family Court directed respondent to replace all furniture and clothing previously removed by him from the premises, granted appellant and the children possession of the house and awarded temporary custody to appellant.
Prior to the return date of the adjourned hearing at the Family Court, respondent's motion in that court for a mistrial was denied as was his request to withdraw the custody proceeding entirely. Thereafter, on respondent's application, the Family Court proceedings were consolidated with respondent's application in the Supreme Court, Queens County, to modify the judgment of divorce as to custody and it is from the order entered at Special Term, awarding custody to respondent, that this appeal is taken.
Before Special Term the three children, appellant and respondent, and their respective witnesses, testified at length and it became readily apparent that the marriage between Salvatore and Marie had been bitter and stormy for many years. The children entertain nothing but negative feelings for their father. The youngest, Anthony, now aged 13, claimed that he would run away if he was required to live with respondent and said: Carol, now 17 years of age and the oldest of the three, complained that respondent In response to an inquiry as to why she did not want to go with her father, Marie, now aged 16, testified: ...
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