Matter of Bjork v. Bjork

• Decision Date: 15 January 2009
• Docket Number: 502888.
• Citation: 2009 NY Slip Op 00146,871 N.Y.S.2d 743,58 A.D.3d 951
• Parties: In the Matter of SHELLY L. BJORK, Appellant-Respondent, v. ERIK T. BJORK, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

58 A.D.3d 951

871 N.Y.S.2d 743

2009 NY Slip Op 00146

In the Matter of SHELLY L. BJORK, Appellant-Respondent, v. ERIK T. BJORK, Respondent-Appellant.

502888.

Appellate Division of the Supreme Court of New York, Third Department.

January 15, 2009.

Cross appeals from an order of the Family Court of St. Lawrence County (Potter, J.), entered February 16, 2007, which partially granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Spain, J.

The parties, parents of a son born in 1996, divorced in 1999 and custody was granted to petitioner (hereinafter the mother) on consent of respondent (hereinafter the father). In 2001, after a trial, Supreme Court (Rogers, J.) modified custody by granting the father sole custody of the then four-year-old child with parenting time to the mother, a modification based on the mother's poor parenting, financial mismanagement, gambling excesses and other areas of instability. Since then, the father has had custody and the mother has had parenting time on alternating weekends, Wednesdays from 3:00 P.M. to 7:00 P.M., and shared or alternating holidays and school vacations. The mother's prior petition to modify custody based upon the father's intent to relocate was dismissed as premature (Matter of Bjork v Bjork, 23 AD3d 784 [2005], lv denied 6 NY3d 707 [2006]), as was a similar subsequent petition.

The mother filed the instant modification petition in 2006 seeking sole custody based upon the father's reassignment to a distant work site which required that he regularly stay out of town leaving the son in the care of his fiancée. After a lengthy trial spanning over six months, in which the parties and others testified and Family Court conducted two in camera hearings with the then 10-year-old child, the court found that there was a sufficient change in circumstances to warrant a modification of the 2001 custody order to the extent of awarding the mother overnight parenting time for periods when the father is working overnight out of town, and increased visitation (including overnight on Wednesdays and two consecutive weeks in the summer). A contingent schedule is included in the event the father's work location is changed, eliminating the need for staying overnight out of town. Joint custody was rejected due to the parties' inability to cooperate, custody remained with the father, and the alternating or shared holiday and school vacation schedule remained intact. The mother now appeals.^*

Upon review, we find that Family Court's modification—explained in detail in a well-reasoned decision that accurately characterizes the relevant changed circumstances and the deleterious impact on the child of the parties' warring behavior—is fully supported by a sound and substantial basis and the court's credibility determinations are entitled to great weight; as such, its order will not be disturbed (see Matter of Goldsmith v Goldsmith, 50 AD3d 1190, 1191-1192 [2008]; Matter of De Hamel v Porto, 22 AD3d 893, 894 [2005]). The testimony established that the child has resided with his father and his father's fiancée in a nurturing environment since 2001, and he excels in school and is well-cared for by his father, who is actively involved in his schooling, health care, sports and other activities. The father, a correction officer, accepted a promotion to sergeant, requiring a commute of 280 miles from his home in the City of Ogdensburg, St. Lawrence County to a Sullivan County facility, without informing the mother. By choice and with permission, he works double shifts for four consecutive days, requiring overnight stays for those days, and then returns home for an eight-day stretch. In his absence, his fiancée, who is not employed outside the home, cares for the child unless it is the mother's parenting time; by all accounts the child has enjoyed a close relationship with the fiancée since 2001 and is well cared for in his father's absence. The mother, as the court noted, "has greatly improved her situation." She has a full-time job, is financially more stable and responsible, owns her home and has a younger daughter with whom the child is close. She is involved in the child's life, regularly exercises visitation, is described as warm and loving, and often seeks more time with him. She also has an extended family with whom the child regularly spends time.

The father refuses, unjustifiably we...