Opinion
2017–11429 Index No. 7170/15
05-01-2019
Jesse COLE, Respondent, v. Samantha COLE, Appellant.
Hasapidis Law Offices, South Salem, N.Y. (Annette G. Hasapidis of counsel), for appellant. Jesse Cole, Staten Island, NY, respondent pro se.
Hasapidis Law Offices, South Salem, N.Y. (Annette G. Hasapidis of counsel), for appellant.
Jesse Cole, Staten Island, NY, respondent pro se.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDER In an action for a divorce and ancillary relief, the defendant appeals from stated portions of a judgment of divorce of the Supreme Court, Orange County (Catherine M. Bartlett, J.), dated September 12, 2017. The judgment, insofar as appealed from, upon a decision of that court dated August 8, 2017, made after a nonjury trial, awarded the plaintiff physical custody of the parties' children and failed to include a provision that required the parties to pay their pro rata share of the children's future unreimbursed health care expenses.
ORDERED that the judgment is modified, on the law and in the exercise of discretion, by adding thereto a provision directing the parties to pay their respective pro rata share of the children's future unreimbursed health care expenses; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Orange County for a determination of each party's pro rata share of the children's future unreimbursed health care expenses.
The plaintiff and the defendant were married in 2011 and are the parents of two children, born in 2007 and 2011. In 2012, the parties moved to Orange County. In 2015, the plaintiff commenced this action for a divorce and ancillary relief. Thereafter, the plaintiff moved out of the marital residence and relocated to Richmond County. Following a hearing, the Supreme Court awarded the parties joint legal custody, awarded the plaintiff physical custody, and awarded the defendant liberal parental access. The defendant appeals.
"The paramount concern in any custody ... determination is the best interests of the child, under the totality of the circumstances" ( Matter of James M. v. Kevin M., 99 A.D.3d 911, 912–913, 952 N.Y.S.2d 257 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). "The factors to be considered in making a custody determination include the parental guidance provided by the custodial parent, each parent's ability to provide for the child's emotional and intellectual development, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent" ( Matter of Maraj v. Gordon, 102 A.D.3d 698, 698, 957 N.Y.S.2d 717 [internal quotation marks 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" ( Prohaszka v. Prohaszka, 103 A.D.3d 617, 618, 958 N.Y.S.2d 508 ; see Matter of Maraj v. Gordon, 102 A.D.3d 698, 957 N.Y.S.2d 717 ). "Thus, where a hearing court has conducted a complete evidentiary hearing, its finding must be accorded great weight, and its grant of custody will not be disturbed unless it lacks a sound and substantial basis in the record" ( Matter of Sajid v. Berrios–Sajid, 73 A.D.3d 1186, 1187, 902 N.Y.S.2d 146 [internal quotation marks omitted]; see Matter of Dwyer–Hayde v. Forcier, 67 A.D.3d 1011, 1011, 889 N.Y.S.2d 650 ).
Here, the Supreme Court conducted a full trial in which it observed the demeanor and heard the testimony of the parties, considered the report of the court-appointed forensic evaluator, and interviewed the children in camera. Based on our review of the record, the court's determination awarding physical custody to the plaintiff has a sound and substantial basis in the record (see Prohaszka v. Prohaszka, 103 A.D.3d 617, 958 N.Y.S.2d 508 ; Matter of Sajid v. Berrios–Sajid, 73 A.D.3d at 1187, 902 N.Y.S.2d 146 ).
The Supreme Court should have directed the parties to contribute pro rata to the children's future unreimbursed health care expenses (see Domestic Relations Law § 240[1–b][c][5] ; Griggs v. Griggs, 44 A.D.3d 710, 713–714, 844 N.Y.S.2d 351 ; Sicurelli v. Sicurelli, 285 A.D.2d 541, 542–543, 727 N.Y.S.2d 479 ; Junkins v. Junkins, 238 A.D.2d 480, 482, 656 N.Y.S.2d 650 ; Ames v. Ames, 212 A.D.2d 653, 654, 622 N.Y.S.2d 774 ).
MASTRO, J.P., ROMAN, HINDS–RADIX and MALTESE, JJ., concur.