Musacchio v. Musacchio

• Decision Date: 27 June 2013
• Citation: 107 A.D.3d 1326,968 N.Y.S.2d 664,2013 N.Y. Slip Op. 04857
• Parties: Anthony C. MUSACCHIO, Appellant, v. Christine M. MUSACCHIO, Respondent.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 1326
968 N.Y.S.2d 664
2013 N.Y. Slip Op. 04857

Anthony C. MUSACCHIO, Appellant,
v.
Christine M. MUSACCHIO, Respondent.

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

June 27, 2013.

[968 N.Y.S.2d 666]

Stevan A. Nosonowitz, Pleasant Valley, for appellant.

Steven Nussbaum, New Paltz, for respondent.

Before: ROSE, J.P., SPAIN, McCARTHY and EGAN JR., JJ.

SPAIN, J.

[107 A.D.3d 1327]Appeal from a judgment of the Supreme Court (Work, J.), entered February 17, 2012 in Ulster County, ordering, among other things, primary physical custody of the parties' children to defendant and equitable distribution of the parties' marital property, upon a decision of the court.

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in 1990 and are the parents of three children (born in 1993, 1995 and 2001). In April 2009, the husband commenced this divorce action and, after the wife did not contest his allegations of constructive abandonment, the remaining issues proceeded to trial. Supreme Court, among other things, awarded the parties joint legal custody of the children with primary physical custody to the wife, directed the husband to pay the wife a distributive award in the amount of $143,705.22, awarded the wife $4,858.34 ¹ in maintenance per month for 7 1/2 years and $3,141.66 in child support per month. The husband now appeals.²

Initially, the husband's arguments that Supreme Court erred in failing to appoint an attorney for the children, order forensic evaluations or conduct in camera interviews of the children prior to reaching its custody determination are not preserved for appellate review because, when given the opportunity, he failed to request any of the foregoing ( see Dana–Sitzer v. Sitzer, 48 A.D.3d 354, 354, 851 N.Y.S.2d 530 [2008];see also Gerson v. Gerson, 57 A.D.3d 606, 607–608, 868 N.Y.S.2d 551 [2008];Matter of Thompson v. Thompson, 267 A.D.2d 516, 519, 699 N.Y.S.2d 181 [1999] ). While trial courts are strongly encouraged to appoint an attorney for the children in contested custody matters, “ ‘such appointment is discretionary, not mandatory’ ” (Matter of Ames v. Ames, 97 A.D.3d 914, 916, 947 N.Y.S.2d 836 [2012],lv. denied20 N.Y.3d 852, 2012 WL 5949777 [2012], quoting Lips v. Lips, 284 A.D.2d 716, 716, 725 N.Y.S.2d 763 [2001];seeFamily Ct. Act § 249[a]; Moor v. Moor, 75 A.D.3d 675, 679, 903 N.Y.S.2d 822 [2010];Matter of Swett v. Balcom, 64 A.D.3d 934, 936, 884 N.Y.S.2d 785 [2009],lv. denied13 N.Y.3d 710, 2009 WL 3427983 [2009] ). Notably, at the beginning of the [107 A.D.3d 1328]long delayed trial, the husband—for the first time—apprised the court that his pretrial proposal to settle the issues of custody and visitation had been withdrawn. The wife's counsel then requested that the court appoint an attorney to represent the children

[968 N.Y.S.2d 667]

while the husband's counsel, rather than join that request, insisted that the trial proceed without interruption. Although the wife's request was ultimately denied, the court noted that it would have appointed an attorney for the children had it known that custody was an issue. Under these circumstances, and in light of the evidence in the record supporting the court's well-reasoned decision resolving custody and visitation, we cannot say that the court abused its discretion.

To the extent that the husband argues that Supreme Court's award of primary physical custody of the children to the wife lacks a sound and substantial basis in the record, we cannot agree. It is well settled that the overriding concern in custody matters is the best interests of the children, requiring the court to consider “all relevant factors including the parents' ability to provide a stable home environment for the child[ren], the child [ren's] wishes, the parents' past performance, relative fitness, ability to guide and provide for the child[ren's] overall well-being, and the willingness of each parent to foster a relationship with the other parent” ( Helm v. Helm, 92 A.D.3d 1164, 1166, 939 N.Y.S.2d 592 [2012] [internal quotation marks and citations omitted]; see Matter of Rundall v. Rundall, 86 A.D.3d 700, 701, 927 N.Y.S.2d 414 [2011];Matter of Lynch v. Gillogly, 82 A.D.3d 1529, 1530, 920 N.Y.S.2d 437 [2011] ). The trial court's determination in that respect will not be disturbed so long as it is supported by a sound and substantial basis in the record ( see Helm v. Helm, 92 A.D.3d at 1166, 939 N.Y.S.2d 592;Matter of Rundall v. Rundall, 86 A.D.3d at 701–702, 927 N.Y.S.2d 414).

While it is clear that the husband has been a loving and supportive parent, the record establishes that the wife was, and always has been, the children's primary caretaker. As such, she was actively involved in their schooling, activities and medical care. The husband, on the other hand, traveled extensively for his career in the financial industry and often worked late hours. The court found that awarding primary physical custody to the wife would, among other things, maintain the greatest stability for the children, noting that the wife was genuinely willing to foster the husband's relationships with the children. According due deference, we find that the award of primary physical custody to the wife was in the children's best interests ( see Matter of Christina MM. v. George MM., 103 A.D.3d 935, 937, 959 N.Y.S.2d 758 [2013];Helm v. Helm, 92 A.D.3d at 1166, 939 N.Y.S.2d 592). Likewise, mindful that “Supreme Court is afforded wide discretion in crafting an appropriate[107 A.D.3d 1329]visitation schedule” ( DeLorenzo v. DeLorenzo, 81 A.D.3d 1110, 1112, 916 N.Y.S.2d 360 [2011],lv. dismissed16 N.Y.3d 888, 924 N.Y.S.2d 317, 948 N.E.2d 923 [2011] ), we discern no abuse of discretion in the court's parenting schedule—providing the father with one weeknight per week, every other weekend and as the parties can agree, which provides him frequent and regular access to the children ( see Matter of Maziejka v. Fennelly, 3 A.D.3d 748, 749, 770 N.Y.S.2d 668 [2004] ).

While the husband does not challenge Supreme Court's overall calculation of his child support obligation, he does contend that the court erred by ordering him to pay the full cost of the children's health, dental and vision...