Opinion
2017–05194 Index No. 53717/11
06-06-2018
Adam ROSENSTOCK, respondent, v. Natalya ROSENSTOCK, appellant.
Peter C. Lomtevas, Brooklyn, NY, for appellant. Adam Rosenstock, Woodcliff Lake, New Jersey, respondent pro se. Brad M. Nacht, Brooklyn, NY, attorney for the children.
Peter C. Lomtevas, Brooklyn, NY, for appellant.
Adam Rosenstock, Woodcliff Lake, New Jersey, respondent pro se.
Brad M. Nacht, Brooklyn, NY, attorney for the children.
JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals from a judgment of divorce of the Supreme Court, Kings County (Rachel A. Adams, J.), dated March 23, 2017. The judgment, insofar as appealed from, upon a decision of the same court dated November 17, 2016, made after a nonjury trial, awarded the plaintiff custody of the parties' two children, awarded the defendant monthly supervised parental access with the children, and did not award the defendant a share of the plaintiff's enhanced earning capacity.
ORDERED that the judgment of divorce is affirmed insofar as appealed from, with costs.
The parties were married in 2009 and have two children. In 2011, the plaintiff commenced this action for a divorce and ancillary relief. During the proceedings, the defendant absconded for approximately 18 months out of the state with the parties' children in violation of court orders (see Rosenstock v. Rosenstock, 149 A.D.3d 887, 51 N.Y.S.3d 593 ). The children were eventually returned to the Supreme Court's jurisdiction after the defendant attempted to commence a divorce proceeding in New Jersey seeking, inter alia, custody of the children. Thereafter, the Supreme Court awarded temporary custody of the children to the plaintiff and supervised parental access to the defendant. In a judgment of divorce dated March 23, 2017, after the conclusion of a nonjury trial, the court, inter alia, awarded the plaintiff sole custody of the children, awarded the defendant monthly supervised parental access with the children, and did not award the defendant a share of the plaintiff's enhanced earning capacity. The defendant appeals.
In making an initial custody determination, the paramount consideration is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Stokes v. Stokes, 154 A.D.3d 952, 953, 62 N.Y.S.3d 534 ). In determining the child's best interests, the court must consider, among other things, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" ( Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ; see Altieri v. Altieri, 156 A.D.3d 667, 668, 66 N.Y.S.3d 323 ). Willful interference with the other parent's right to parental access, such as when a parent absconds with the children, is "an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent" ( Entwistle v. Entwistle, 61 A.D.2d 380, 384–385, 402 N.Y.S.2d 213 ; see Matter of Goodman v. Jones, 146 A.D.3d 884, 885, 45 N.Y.S.3d 192 ; Matter of Pierre v. Dal, 142 A.D.3d 1021, 1023, 37 N.Y.S.3d 317 ; Matter of Purse v. Crocker, 95 A.D.3d 1216, 1217, 944 N.Y.S.2d 648 ).
Since custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the trial court's credibility findings, and such findings will not be disturbed unless they lack a sound and substantial basis in the record (see Fenech v. Fenech, 141 A.D.3d 683, 685, 35 N.Y.S.3d 471 ; Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208 ; Albert v. Albert, 60 A.D.3d 979, 979, 876 N.Y.S.2d 442 ). Here, the Supreme Court's determination that the children's best interests would be served by awarding sole custody to the plaintiff has a sound and substantial basis in the record and, thus, will not be disturbed.
Although supervised parental access is appropriate only where it is established that unsupervised parental access would be detrimental to the child (see Matter of Murphy v. Lewis, 149 A.D.3d 748, 749–750, 51 N.Y.S.3d 155 ; Liverance v. Liverance, 148 A.D.3d 695, 695, 47 N.Y.S.3d 713 ), under the circumstances of this case, we agree with the Supreme Court that unsupervised parental access with the defendant is not in the children's best interests (see Matter of Henry v. Tucker, 157 A.D.3d 892, 893, 67 N.Y.S.3d 475 ; Liverance v. Liverance, 148 A.D.3d at 696, 47 N.Y.S.3d 713).
The defendant failed to submit evidence as to the value, if any, of the plaintiff's enhanced earning capacity (see Ruo Mei Cai v. Lau, 133 A.D.3d 541, 541, 19 N.Y.S.3d 412 ). Thus, we agree with the Supreme Court's determination not to award the defendant a share of the plaintiff's enhanced earning capacity.
The defendant's remaining contentions are either not properly before this Court or without merit.
LEVENTHAL, J.P., AUSTIN, DUFFY and BARROS, JJ., concur.