Sloma v. Sloma

• Decision Date: 24 March 2017
• Citation: 148 A.D.3d 1679,51 N.Y.S.3d 275
• Parties: In the Matter of Michele A. SLOMA, Petitioner–Respondent, v. Eric M. SLOMA, Respondent–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1679

51 N.Y.S.3d 275

In the Matter of Michele A. SLOMA, Petitioner–Respondent,

v.Eric M. SLOMA, Respondent–Appellant. (Appeal No. 1.).

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

March 24, 2017.

Richard L. Wolfe, Utica, for Respondent–Appellant.

Julie Giruzzi–Mosca, Attorney for the Child, Utica.

PRESENT: CENTRA, J.P., PERADOTTO, DeJOSEPH, CURRAN, AND SCUDDER, JJ.

MEMORANDUM:

In appeal No. 1, respondent father appeals from an order that, inter alia, modified a prior order by granting petitioner mother primary physical custody of the parties' child. In appeal No. 2, the father appeals from an order that dismissed his order to show cause pursuant to CPLR 4404(b), thus in effect denying the father's motion to vacate the order that is the subject of appeal No. 1.

Contrary to the father's contention in appeal No. 1, Family Court properly determined that the mother established that there was a sufficient change in circumstances since the time of the prior order that warranted modification of that order (see generally Matter of Guillermo v. Agramonte, 137 A.D.3d 1767, 1768, 29 N.Y.S.3d 720 ; Matter of McClinton v. Kirkman, 132 A.D.3d 1245, 1245–1246, 18 N.Y.S.3d 485 ). Pursuant to their opting out agreement that was incorporated but not merged in the judgment of divorce, the parties agreed to joint custody with the mother having primary physical custody, and the parties would enroll the child "in the Whitesboro School District at Deerfield Elementary if possible." When the mother relocated and moved the child into a school in a different school district a year later, the father was granted primary physical custody after a trial based primarily on the change in the child's school. After obtaining custody, the father re-enrolled the child at Deerfield, but six months later he enrolled the child in a different school, albeit in the same school district. We conclude that the change in school, together with testimony from the mother concerning the father's interference with her custodial rights, was sufficient to establish a change in circumstances (see generally Matter of Mehta v. Franklin, 128 A.D.3d 1419, 1420, 7 N.Y.S.3d 917 ).

Contrary to the father's further contention, the court's determination awarding the mother primary physical custody is in the child's best interests (see id. ). "In making a determination regarding custody, ‘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 the child, and the individual needs and expressed desires of the child’ " (Matter of Bryan K.B. v. Destiny S.B., 43 A.D.3d 1448, 1450, 844 N.Y.S.2d 535 ; see Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 ). Here, most of the factors did not favor one party over the other. We agree with the court, however, that the evidence established that the father failed to nurture or facilitate a relationship between the mother and the child. In addition, the father made decisions regarding the child that were beneficial to his new family, such as changing her school,...