Opinion
776 CAF 19-00178
11-13-2020
In the Matter of KC B. MENCH, Petitioner-Appellant, v. Ronald G. MAJERUS, III, Respondent-Respondent.
MICHAEL G. CIANFARANO, OSWEGO, FOR PETITIONER-APPELLANT. CASEY E. JORDAN, CLAY, ATTORNEY FOR THE CHILD.
MICHAEL G. CIANFARANO, OSWEGO, FOR PETITIONER-APPELLANT.
CASEY E. JORDAN, CLAY, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., NEMOYER, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by dismissing the family offense petition, and as modified the order is affirmed without costs.
Memorandum: Petitioner mother appeals from an order that, after, inter alia, a hearing on her petition for custody of the subject child and on her family offense petition against respondent father, awarded the parties joint legal custody and shared physical custody of the child. In its written decision, in addition to awarding custody of the child, Family Court also dismissed the mother's family offense petition. The order appealed from, however, does not expressly mention that the court dismissed the family offense petition, and referenced only its resolution of the mother's custody petition.
Initially, we conclude that the court did not err in refusing to award the mother sole physical custody of the child. In our view, the court's determination that it was in the child's best interests to award the parties joint legal and physical custody "is supported by a sound and substantial basis in the record and thus [should] not be disturbed" ( Wideman v. Wideman , 38 A.D.3d 1318, 1319, 834 N.Y.S.2d 405 [4th Dept. 2007] [internal quotation marks omitted]; see Matter of Steingart v. Fong , 156 A.D.3d 794, 795-796, 67 N.Y.S.3d 44 [2d Dept. 2017] ). The record establishes that the court weighed the appropriate factors (see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 171-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ), and the determination of the court, " ‘which [was] in the best position to evaluate the character and credibility of the witnesses, must be accorded great weight’ " ( Wideman , 38 A.D.3d at 1319, 834 N.Y.S.2d 405 ; see Matter of Lesinski v. Ciamaga , 180 A.D.3d 1341, 1342, 115 N.Y.S.3d 736 [4th Dept. 2020] ).
With respect to the mother's contention challenging the dismissal of the family offense petition, we note that where, as here, there is a conflict between the decision and order, the decision controls (see Matter of Esposito v. Magill , 140 A.D.3d 1772, 1773, 32 N.Y.S.3d 802 [4th Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6209084 [2016] ; Matter of Edward V. , 204 A.D.2d 1060, 1061, 614 N.Y.S.2d 348 [4th Dept. 1994] ), and the order "must be modified to conform to the decision" ( Waul v. State of New York , 27 A.D.3d 1114, 1115, 811 N.Y.S.2d 834 [4th Dept. 2006], lv denied 7 N.Y.3d 705, 819 N.Y.S.2d 872, 853 N.E.2d 243 [2006] ; see CPLR 5019 [a] ). We therefore modify the order by dismissing the family offense petition.
Moreover, we conclude that the court did not err in determining that the mother failed to prove by a fair preponderance of the evidence that the father's alleged conduct established the relevant family offense (see Family Ct. Act § 832 ; see generally Matter of Washington v. Washington , 158 A.D.3d 717, 718, 70 N.Y.S.3d 560 [2d Dept. 2018], lv denied 32 N.Y.3d 912, 2018 WL 6543470 [2018] ). "The determination whether [the father] committed a family offense was a factual issue for the court to resolve, and ‘[the] court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record’ " ( Matter of Martin v. Flynn , 133 A.D.3d 1369, 1370, 20 N.Y.S.3d 812 [4th Dept. 2015] ; see Cunningham v. Cunningham , 137 A.D.3d 1704, 1704-1705, 28 N.Y.S.3d 751 [4th Dept. 2016] ). Here, we find no reason to disturb the court's credibility determinations or its conclusion that the father did not commit the relevant family offense of harassment in the second degree (see Matter of Teanna P. v. David M. , 134 A.D.3d 654, 655, 21 N.Y.S.3d 622 [1st Dept. 2015] ; Matter of Krisztina K. v. John S. , 103 A.D.3d 724, 724, 960 N.Y.S.2d 144 [2d Dept. 2013] ; see generally Penal Law § 240.26 [3] ). The record does not support the conclusion that the father intended to "harass, annoy or alarm [the mother]" ( § 240.26 ) and, thus, the mother did not meet her burden of establishing a family offense by a preponderance of the evidence (see Matter of David ZZ. v. Michael ZZ. , 151 A.D.3d 1339, 1341, 56 N.Y.S.3d 660 [3d Dept. 2017] ; Matter of Eck v. Eck , 44 A.D.3d 1168, 1168-1169, 844 N.Y.S.2d 460 [3d Dept. 2007], lv denied 9 N.Y.3d 818, 851 N.Y.S.2d 390, 881 N.E.2d 839 [2008] ).