Salvatore v. Salvatore

• Decision Date: 15 December 2009
• Docket Number: 2009-00477
• Citation: 2009 NY Slip Op 9452,68 A.D.3d 966,893 N.Y.S.2d 63
• Parties: LINDA SALVATORE, Respondent, v. GERALD P. SALVATORE, Appellant.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 966

2009 NY Slip Op 9452

893 N.Y.S.2d 63

LINDA SALVATORE, Respondent, v. GERALD P. SALVATORE, Appellant.

2009-00477

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

Decided December 15, 2009.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (MacKenzie, J.), entered December 11, 2008, as, upon an order of the same court dated August 15, 2007, made after a hearing, awarding custody of the parties' two children to the plaintiff, and an order of the same court dated May 20, 2008, denying his motion to modify the order dated August 15, 2007, so as to award him custody, awarded custody of the parties' two children to the plaintiff.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

"When determining custody cases, the primary concern is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171-173 [1982]) . . . [i]n determining the custody arrangement that is in the child's best interests, the court must consider multiple factors. These include `the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent'" (Matter of Edwards v Rothschild, 60 AD3d 675, 676-677 [2009] [citations omitted]).

"Since a custody determination necessarily depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record" (Matter of Berkham v Vessia, 63 AD3d 1155, 1156 [2009] [citations omitted]; see Torelli v Torelli, 62 AD3d 691, 692 [2009]; Matter of Edwards v Rothschild, 60 AD3d at 677; Matter of Jara v Rivera, 60 AD3d 680 [2009]).

The Supreme Court's determination to award custody of the parties' son and daughter to the mother has a sound and substantial basis in the record, and will not be disturbed. While the Supreme Court erred in its factual finding that the father had relinquished custody of one of his daughters from his first marriage, given the total circumstances of this case, that error does not diminish the bases for the award of custody to the mother.

The father is not entitled to any relief based on his claim that he received ineffective assistance of counsel. In the context of civil litigation, a claim of ineffective assistance will not be entertained, absent extraordinary circumstances (see Galil, LLC v Scott, 61 AD3d 820 [2009]; Mendoza v Plaza Homes, LLC, 55 AD3d 692, 693 [2008]; Matter of Robinson, 44 AD3d 961 [2007]; Matter of Cichosz v Cichosz, 12 AD3d 598, 599 [2004]; Matter of Ketcham v Crawford, 1 AD3d 359, 361 [2003]; Matter of Eirich v Costello, 309 AD2d 934 [2003]; Matter of Saren v Palma, 263 AD2d 544, 545 [1999]). No such extraordinary circumstances are present on this record.

Furthermore, the Supreme Court properly denied the father's motion to modify the award of custody to the mother. "`Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child' (Matter of Pignataro v Davis, 8 AD3d 487, 488 [2004])" (Matter of Watson v Smith, 52 AD3d 615, 616 [2008]; see Matter of Adornato v Adornato, 63 AD3d 920 [2009]; Matter of Meyers v Sheehan, 62 AD3d 802, 803 [2009]; Matter of Gurewich v Gurewich, 58 AD3d 628, 629 [2009]; Foley v Foley, 52 AD3d 773, 774 [2008]).

"A noncustodial parent seeking a change of custody is not entitled to a hearing without making some evidentiary showing sufficient to warrant a hearing" (Matter of Lopez v Infante, 55 AD3d 837, 838 [2008]...