Opinion
557 CAF 17–01742
05-04-2018
In the Matter of Mark G. LOVELAND, Petitioner–Appellant, v. Erika N. BARNES, Respondent–Respondent. In the Matter of Erika N. Barnes, Petitioner–Respondent, v. Mark G. Loveland, Respondent–Appellant. (Appeal No. 1.)
MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FOR PETITIONER–APPELLANT AND RESPONDENT–APPELLANT. ERIKA N. BARNES, RESPONDENT–RESPONDENT AND PETITIONER–RESPONDENT PRO SE. ROBERT A. DINIERI, CLYDE, ATTORNEY FOR THE CHILD.
MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FOR PETITIONER–APPELLANT AND RESPONDENT–APPELLANT.
ERIKA N. BARNES, RESPONDENT–RESPONDENT AND PETITIONER–RESPONDENT PRO SE.
ROBERT A. DINIERI, CLYDE, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND NEMOYER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In appeal No. 1, petitioner-respondent father appeals from an order that, inter alia, denied his petition seeking modification of a prior custody order by awarding him sole custody of the parties' child, and granted the cross petition of respondent-petitioner mother seeking modification of the prior order of custody by awarding her sole custody of the child. In appeal No. 2, the father appeals from an order awarding attorney's fees to the mother.
We conclude in appeal No. 1 that the record supports the determination of Family Court that joint custody was no longer appropriate in light of the parties' acrimonious relationship (see Williams v. Williams, 100 A.D.3d 1347, 1348, 953 N.Y.S.2d 421 [4th Dept. 2012] ). We further conclude that there is a sound and substantial basis in the record to support the court's determination that it was in the child's best interests to award sole legal custody to the mother (see Matter of Lawson v. Lawson, 111 A.D.3d 1393, 1393, 974 N.Y.S.2d 854 [4th Dept. 2013] ). A sound and substantial basis in the record also supports the court's determination "that the father failed to establish a change in circumstances reflecting a real need for change in the primary residence of the child[ ] to ensure that [his] best interests were served" ( Matter of Betro v. Carbone, 50 A.D.3d 1583, 1584, 857 N.Y.S.2d 406 [4th Dept. 2008] ).
Contrary to the father's contention in appeal No. 2, we conclude that the court did not award attorney's fees to the mother pursuant to 22 NYCRR part 130, inasmuch as the court explicitly found that the modification proceeding initiated by the father was not frivolous. We further conclude that the court properly awarded such fees to the mother, not as a sanction against the father, but rather based upon "the equities of the case and the financial circumstances of the parties" ( Popelaski v. Popelaski, 22 A.D.3d 735, 738, 803 N.Y.S.2d 108 [2d Dept. 2005] ; see Griffin v. Griffin, 104 A.D.3d 1270, 1272, 961 N.Y.S.2d 677 [4th Dept. 2013] ).