Sheridan v. Sheridan

• Citation: 129 A.D.3d 1567,12 N.Y.S.3d 434,2015 N.Y. Slip Op. 05301
• Decision Date: 19 June 2015
• Docket Number: 312 CA 13-01929
• Parties: Kelly G. SHERIDAN, Plaintiff–Respondent, v. David E. SHERIDAN, Defendant–Appellant. Kelly M. Corbett, Esq., Attorney for the Child, Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1567

12 N.Y.S.3d 434

2015 N.Y. Slip Op. 05301

Kelly G. SHERIDAN, Plaintiff–Respondent

v. David E. SHERIDAN, Defendant–Appellant.Kelly M. Corbett, Esq., Attorney for the Child, Appellant. (Appeal No. 1.).

312 CA 13-01929

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

June 19, 2015.

Phillips Lytle LLP, Buffalo (Michael B. Powers of Counsel), for Defendant–Appellant.

Kelly M. Corbett, Attorney for the Child, Fayetteville, Appellant Pro Se.

Hancock Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for Plaintiff–Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND DEJOSEPH, JJ.

OpinionMEMORANDUM:

In appeal No. 1, defendant father and the appellate Attorney for the Child (AFC) appeal from an order that, inter alia, awarded sole custody of the subject 13–year–old child to plaintiff mother and visitation to the father. In appeal No. 2, the father appeals from an order that, inter alia, directed him to pay counsel fees to the mother's attorney in the amount of $44,977.34, directed him to pay sanctions in the amount of $7,000, and directed the father's attorney to pay sanctions in the amount of $3,000.

The father contends in appeal No. 1 that he did not receive a fair trial because of certain “errant” evidentiary rulings. We agree with the father that Supreme Court improperly curtailed his cross-examination of the court-appointed expert (see CPLR 4515 ); erred in prohibiting him from calling the child's therapist as a rebuttal witness; and erred in admitting certain EZ–Pass records because “[a] proper foundation for [their] admission ... [was not] provided by someone with personal knowledge of the maker's business practices and procedures” (Palisades Collection, LLC v. Kedik, 67 A.D.3d 1329, 1330–1331, 890 N.Y.S.2d 230 [internal quotation marks omitted]; see also KG2, LLC v. Weller, 105 A.D.3d 1414, 1415, 966 N.Y.S.2d 298 ), and there was no indication that the records were certified to comply with CPLR 4518 pursuant to CPLR 3122–a. We conclude, however, that those errors are harmless inasmuch as the excluded evidence “ ‘would [not] have had a substantial influence on the outcome of the case’ ” (Nationstar Mtge., LLC v. Davidson, 116 A.D.3d 1294, 1296, 983 N.Y.S.2d 705, lv. denied 24 N.Y.3d 905, 2014 WL 4637016 ), and the errors “ ‘did not adversely affect a substantial right of the [father]’ ” (Cor Can. Rd. Co., LLC v. Dunn & Sgromo Engrs., PLLC, 34 A.D.3d 1364, 1365, 825 N.Y.S.2d 601 ; Shahram v. Horwitz, 5 A.D.3d 1034, 1035, 773 N.Y.S.2d 642 ).

Contrary to the father's further contention in appeal No. 1, the court did not err in admitting in evidence the reports of the court-appointed expert pursuant to 22 NYCRR 202.16(g)(2). Although the reports themselves were not submitted “under oath” as required by that regulation, the expert was subsequently called, she testified under oath, and she was available for cross-examination (cf. Matter of Kranock v. Ranieri, 17 A.D.3d 1104, 1105, 793 N.Y.S.2d 810, lv. denied 5 N.Y.3d 709, 803 N.Y.S.2d 30, 836 N.E.2d 1153 ; see generally Posporelis v. Posporelis, 41 A.D.3d 986, 992, 838 N.Y.S.2d 681 ).

The father and the AFC further contend in appeal No. 1 that the court's custody determination is not in the child's best interests and that the court failed to give appropriate weight to the child's desire to live with the father. In making a custody determination, “the court must consider all factors that could impact the best interests of the child, including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of [the parties] to provide for the child's emotional and intellectual development and the wishes of the child ... No one factor is determinative because the court must review the totality of the circumstances” (Matter of Cross v. Caswell, 113 A.D.3d 1107, 1107, 977 N.Y.S.2d 853 [internal quotation marks omitted] ). A court's custody determination, including its evaluation of a child's best interests, is entitled to great deference and will not be disturbed as long as it is supported by a sound and substantial basis in the record (see id. at 1107–1108, 977 N.Y.S.2d 853 ; see also Matter of Thillman v. Mayer, 85 A.D.3d 1624, 1625, 926 N.Y.S.2d 779 ).

“Here, although there are several factors that militate in favor of awarding custody to the [father],” we conclude that the court's determination that it is in the best interests of the child to remain in the custody of the mother is supported by a sound and substantial basis in the record (Cross, 113 A.D.3d at 1107, 977 N.Y.S.2d 853 ). As noted by the court-appointed expert, a potential move from his mother's residence in Syracuse to his father's residence in Buffalo would put the child “at risk of experiencing a tremendous sense of loss and disruption” because he is “connected to his school[,] his mom[,] his community[,] his neighborhood[,] his friends and his pursuits [in Syracuse].” Furthermore, while we agree with the father and the AFC that the child's “wishes ... [were] entitled to great weight, particularly where[, as here, his] age and maturity ... make[s his] input particularly meaningful” (Matter of Stevenson v. Stevenson, 70 A.D.3d 1515, 1516, 894 N.Y.S.2d 696, lv. denied 14 N.Y.3d 712, 2010 WL 2196658 [internal quotation marks omitted] ), the court acknowledged the factor, and deemed it to be significant, but noted why it was not entitled to the type of consideration that the father and the AFC had requested. Because the wishes of the child are “not ... determinative,” we perceive no error in how the court addressed that factor (Dintruff v. McGreevy, 34 N.Y.2d 887, 888, 359 N.Y.S.2d 281, 316 N.E.2d 716 ).

Contrary to the AFC's contention in appeal No. 1 that the AFC at the trial level did not properly present the child's wishes to the court, we conclude that the AFC at the trial level fulfilled her representational obligations by voicing the child's wishes directly to the court without recommending any finding to the contrary. In addition, we note that the court held two Lincoln hearings, and the AFC did not prevent the child from voicing his wishes to the court (see 22 NYCRR 7.2 [d]; Matter of Rosso v. Gerouw–Rosso, 79 A.D.3d 1726, 1728, 914 N.Y.S.2d 829 ; see also Matter of Gloria DD. [Brenda DD.], 99 A.D.3d 1044, 1046–1047, 952 N.Y.S.2d 785 ; Matter of Whitcomb v. Seward, 86 A.D.3d 741, 745, 926 N.Y.S.2d 764 ).

Contrary to the father's further contention in appeal No. 1, with deference to the “court's determination and its ‘firsthand assessment’ of the parties,” we cannot conclude that the court erred in fashioning a visitation schedule (D'Ambra v. D'Ambra [Appeal No. 2], 94 A.D.3d 1532, 1534, 943 N.Y.S.2d 698 ). The court's creation of two equal Christmas visitation periods, which alternate annually, was an appropriate exercise of its discretion. In addition, the court appropriately exercised its discretion in providing for flexible weekday visitation to take into account the child's participation in extracurricular activities. We therefore see no basis to disturb the visitation schedule fashioned by the court (see Matter of Rought v. Palidar, 6 A.D.3d 1112, 1112, 775 N.Y.S.2d 678 ).

Lastly, with respect to appeal No. 2, we conclude that the court abused its discretion in awarding sanctions inasmuch as the conduct of the father and his counsel was not “frivolous” as defined in 22 NYCRR 130–1.1(c) (see Kimmel v. State of New York, 115 A.D.3d 1323, 1325, 983 N.Y.S.2d 177 ), and we therefore modify the order accordingly. We further conclude that the court did not abuse its discretion in ordering the father to pay the mother's attorney's fees (see Decker v. Decker, 91 A.D.3d 1291, 1291, 938 N.Y.S.2d 690 ). We note, however, that there is a mathematical error in the computation of the award of attorney's fees, which should be reduced by $6,330.55, for a total of $38,646.79, and we therefore further modify the order accordingly.

It is hereby ORDERED that the order so appealed from is affirmed without costs.

All concur except CENTRA, J.P., and PERADOTTO, J., who dissent and vote to modify in accordance with the following memorandum:

We respectfully dissent in appeal No. 1 because, in our view, Supreme Court's determination awarding sole legal and physical custody of the parties' child to plaintiff mother lacks a sound and substantial basis in the record (see Matter of Bryan K.B. v. Destiny S.B., 43 A.D.3d 1448, 1449, 844 N.Y.S.2d 535 ). We would therefore modify the order in appeal No. 1 by awarding sole custody to defendant father with visitation to the mother and remit the matter to Supreme Court for a different justice to fashion an appropriate visitation schedule (see id. at 1451, 844 N.Y.S.2d 535 ; see also Sitts v. Sitts, 74 A.D.3d 1722, 1723–1724, 902 N.Y.S.2d 274, lv. dismissed 15 N.Y.3d 833, 909 N.Y.S.2d 8, 935 N.E.2d 799, lv. denied 18 N.Y.3d 801, 2011 WL 6155555 ). We agree with the majority's resolution of appeal No. 2.

Although, as a general rule, the custody determination of a trial court is entitled to great deference (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ), “[s]uch deference is not warranted ... where[, as here,] the custody determination lacks a sound and substantial basis in the record” (Fox v. Fox, 177 A.D.2d 209, 211–212, 582 N.Y.S.2d 863 ; see Sitts, 74 A.D.3d at 1723, 902 N.Y.S.2d 274 ). Ultimately, we must determine what is in the child's best interests “ ‘and what will best promote [his] welfare and happiness' ” (Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). In making that determination “numerous factors are to be considered, including the continuity and stability of the existing custodial arrangement, the quality of the child's home environment and that of the parent seeking custody, 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...