Skolnick v. Skolnick
| Decision Date | 05 July 1988 |
| Citation | 530 N.Y.S.2d 235,142 A.D.2d 570 |
| Parties | Eric SKOLNICK, Respondent, v. Lisa SKOLNICK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joel R. Brandes, P.C., Garden City, for appellant.
Dikman, Dikman & Botter, Jamaica (Michael Dikman, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, KUNZEMAN and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the parties were divorced by a judgment dated July 17, 1984, the defendant mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Zelman, J.), dated January 21, 1988, as, after a hearing, granted so much of the plaintiff father's motion as sought (1) a change in custody of his four infant issue to him, and (2) counsel fees and disbursements in the sum of $26,775.
ORDERED that the order is reversed insofar as appealed from, on the law and on the facts, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further and complete psychiatric evaluations of the parties, their respective spouses, and the children, and for a hearing de novo in accordance herewith before a different Justice, which hearing shall be held with all convenient speed; and it is further,
ORDERED that pending the determination of the motion after the hearing, the terms of the parties' stipulation dated June 26, 1986, shall control.
Since the determination as to whether an award of custody should be modified depends to a very great extent upon assessments of credibility of the witnesses and upon assessments of the character and temperament of the parents, the finding of the hearing court must be accorded great respect ( Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Ira K. v. Frances K., 115 A.D.2d 699, 497 N.Y.S.2d 685). However "appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record" ( Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411). Such is the case here. Although the record contains evidence of the deep resentment and hostility the mother harbors toward the father, and evidence of the fact that, on numerous occasions, some or all of the children have refused to go with the father for visitation, there is insufficient evidence to support the conclusion that this denial of visitation is wholly attributable to the intentional acts of the mother ( see, Fruehwirth v. Fruehwirth, 110...
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