Mitzner v. Mitzner

• Citation: 619 N.Y.S.2d 51,209 A.D.2d 487
• Parties: Richard MITZNER, Appellant, v. Sheryl MITZNER, Respondent.
• Decision Date: 14 November 1994
• Court: New York Supreme Court — Appellate Division

Page 51

619 N.Y.S.2d 51

209 A.D.2d 487

Richard MITZNER, Appellant, v. Sheryl MITZNER, Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 14, 1994.

Christopher & Draine, Upper Nyack (Linda Christopher, of counsel), for appellant.

Richard Feinberg, New City, for respondent.

Before MANGANO, P.J., and THOMPSON, SULLIVAN and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action for divorce and ancillary relief, the plaintiff husband appeals (1) from an order of protection of the Supreme Court, Rockland County (Meehan, J.), dated March 11, 1993, as amended, and, (2) as limited by his brief, from stated portions of a judgment of the same court, dated May 20, 1993, which, inter alia, granted the parties a divorce.

ORDERED that the appeal from the order of protection is dismissed; and it is further,

ORDERED that the judgment is modified by adding to the third decretal paragraph thereof after the word "continued" the following phrase: "during the minority of the child Michael Mitzner"; as so modified, the judgment is affirmed insofar as appealed from, with costs to the respondent.

The appeal from the intermediate amended order of protection must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the amended order of protection are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].

The parties, both schoolteachers, were married in 1970 and had two children--Joshua, born in 1979 and Michael, born in 1983. The Supreme Court awarded custody of Joshua to the husband and awarded custody of Michael to the wife. Upon our review of the record, we find no basis to disturb the court's split custody determination since, in this case, "the best interests of each child lies with a different parent" (Wurm v. Wurm, 87 A.D.2d 590, 591, 447 N.Y.S.2d 758; see, Klat v. Klat, 176 A.D.2d 922, 575 N.Y.S.2d 536).

The record shows that the wife spent less time at home with the two children than did the husband but that her absence was largely due to the husband's emotional mistreatment of her when she was there. This familial acrimony had caused the wife's relationship with fourteen-year-old Joshua to deteriorate. In recent years, he argued, shouted and cursed at his mother and had even struck her. She, nonetheless, managed to maintain a positive and close relationship with ten-year-old Michael. While both boys expressed a preference to live with their father, Michael's preference appears to have been influenced by his father and brother. In any event, the preference of the child is not the sole factor to be considered in custody determination and need not be followed per se (see, Matter of Krebsbach v. Gallagher, 181 A.D.2d 363, 587 N.Y.S.2d 346; Klat v. Klat, supra ).

We recognize and affirm the general rule "that absent an overwhelming need to do so" it is in the child's best interest to continue living with his or her siblings (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 382 N.Y.S.2d 472, 346 N.E.2d 240; Obey v. Degling, 37 N.Y.2d 768, 375 N.Y.S.2d 91, 337 N.E.2d 601; Keating v. Keating, 147 A.D.2d 675, 538 N.Y.S.2d 286). This is because "[y]oung brothers and sisters need each other's strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful" (Obey v. Degling, 37 N.Y.2d supra, at 771, 375 N.Y.S.2d 91, 337 N.E.2d 601). "[T]he stability and companionship to be gained from keeping the children together is an important factor for the court to consider" (Eschbach v. Eschbach, 56 N.Y.2d supra, at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).

However, this policy against separating siblings is "not an absolute" (Eschbach v. Eschbach, supra ). Split custody determinations have been recognized as proper when "the best interests of each child lies with a different parent" (Wurm v. Wurm, 87 A.D.2d, supra at 591, 447 N.Y.S.2d 758; see also, Klat v. Klat, 176 A.D.2d 922, 575 N.Y.S.2d 536, supra; Matter of Bilodeau v. Bilodeau, 161 A.D.2d 906, 557 N.Y.S.2d 471).

In this case, the dysfunctional family environment appears to have so damaged normal interpersonal relationships between parent and child that the more customary custody arrangement of keeping the children together was found unsuitable. Rather, the trial court found that this case falls into the rare category of those where siblings should be separated. Upon the record before us, we find no basis for reversing that...