Opferbeck v. Opferbeck
| Decision Date | 27 May 1977 |
| Citation | 395 N.Y.S.2d 831,57 A.D.2d 1074 |
| Parties | Lee OPFERBECK, Appellant, v. Lois OPFERBECK, Respondent. |
| Court | New York Supreme Court — Appellate Division |
David M. Garber, Corp. Counsel, Syracuse, for petitioner.
James Meyerson, NAACP Special Contribution Fund, New York City, for respondent.
Patterson Beverly Gross, New York City, for appellant.
Before MARSH, P. J., and MOULE, SIMONS, DILLON and WITMER, JJ.
Plaintiff husband has been granted a divorce in this action from defendant wife based upon (1) their living apart for one year under the terms of a Separation Agreement, (2) the cruel and inhuman treatment by defendant towards plaintiff and (3) defendant's adultery. The court incorporated the separation agreement in the judgment. By the terms of that agreement, custody of the two children, now ages eight and seven, was given to the wife, with the father to have visitation privileges as agreed by the parties; the husband was to pay $50 per week for support of the children.
The husband contends that the court erred in granting custody to the wife, in failing to modify the support provisions of the agreement and in certain procedural matters arising during the trial.
In a proceeding involving two natural parents, custody of children is to be determined solely by what is in the best interests of the child (Domestic Relations Law, § 240), and the disposition of the trial court should not be reversed in the absence of manifest error or abuse of discretion (People ex rel. Destasio v. Perruzza, 277 App.Div. 996, 100 N.Y.S.2d 22). Moreover, when children have been living with one parent for a long period of time and the parties have previously agreed upon custody in that parent, that custody should be continued unless it is demonstrated that the custodial parent is unfit or at least less fit than the non-custodial parent (Papernik v. Papernik, 55 A.D.2d 846, 390 N.Y.S.2d 337; Nierenberg v. Nierenberg, 43 A.D.2d 717, 350 N.Y.S.2d 437).
The main thrust of the husband's argument in this appeal is that the wife is a promiscuous woman and that her affairs are having an adverse effect on the children (see Papernik v. Papernik, supra; Feldman v. Feldman, 45 A.D.2d 320, 358 N.Y.S.2d 507; Matter of "CC" v. "CC", 37 A.D.2d 657, 322 N.Y.S.2d 388). The evidence accepted by the trial court does not support this contention, and we accept the trial court's determination that custody should be continued with the wife.
It is apparent from this record that both parents love these children and that the children are affectionate towards...
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