Palumbo v. Palumbo

• Decision Date: 04 March 2002
• Citation: 292 A.D.2d 358,738 N.Y.S.2d 90
• Parties: CHARLEEN PALUMBO, Respondent-Appellant,<BR>v.<BR>ROBERT PALUMBO, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

292 A.D.2d 358

738 N.Y.S.2d 90

CHARLEEN PALUMBO, Respondent-Appellant,

v.ROBERT PALUMBO, Appellant-Respondent.

Decided March 4, 2002.

Prudenti, P.J., Altman, S. Miller and Cozier, JJ., concur.

Ordered that on the Court's own motion, the notices of appeal and cross appeal from the order dated August 1, 2000, are treated as applications for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order dated July 29, 2000, is modified, as a matter of discretion, by deleting the provision thereof holding in abeyance those branches of the plaintiff's cross motion which were for leave to enter a money judgment in the sum of $11,975, to increase weekly temporary maintenance and child support, and for an award of additional interim attorney's and accounting fees, and substituting therefor a provision granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,

Ordered that the order dated August 1, 2000, is modified, on the law and as a matter of discretion, by (1) deleting the provision thereof which, in effect, directed the plaintiff to continue residing indefinitely in the daughter's present school district, and (2) deleting the provision thereof awarding the defendant visitation every other week from Monday at 8:00 A.M. to Sunday at 8:00 P.M. and for one half of the summer vacation and substituting therefor a provision awarding the defendant visitation every Wednesday from 3:30 P.M. through 8:00 P.M. and on alternate weekends from Friday at 5:00 P.M. until Sunday at 8:00 P.M. during the school year and for four weeks during the summer vacation; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The order dated August 1, 2000, is not appealable as of right as it does not decide a motion made on notice (see, CPLR 5701 [a]). However, under the circumstances leave to appeal has been granted.

Contrary to the defendant's contention, the Supreme Court's award of custody of the parties' daughter to the plaintiff, has a sound and substantial basis in the record (see, Eschbach v Eschbach, 56 NY2d 167; Barbato v Barbato, 264 AD2d 792). The Supreme Court's custody determination is supported by evidence that the plaintiff would offer the daughter the best opportunity to separate, individuate, and to grow into her own person, without interfering in a positive relationship with the defendant, even though both parties were responsible and loving parents (see, Barbato v Barbato, supra at 793).

The Supreme Court also properly gave little weight to the defendant's experts who testified that he should be awarded custody of the child. The conclusions reached by the experts hired by the defendant were based upon inadequate information, and a biased one-sided description of events provided by the defendant (see, Alan G. v Joan G., 104 AD2d 147, 154; Matter of Gloria S. v Richard B., 80 AD2d 72, 76-77).

Equally without merit is the defendant's claim that the Supreme Court erred in failing to consider joint custody. An award of joint custody in this case would not be in the child's best interests, particularly in light of the acrimonious relationship between the parties, and their inability to communicate with each other and agree upon the care of the child (see, Bliss v Ach, 56 NY2d 995; Braiman v Braiman, 44 NY2d 584; Forzano v Scuderi, 224 AD2d 385).

The Supreme Court erred in its award of visitation to the defendant. While the court correctly rejected the defendant's request for joint custody, the award of visitation to the defendant, which provided that the daughter would reside with him on alternate weeks during the school year and for one half of the summer vacation, is inconsistent with the award of sole custody to the mother. As the parties are unable to deal...