Opinion
CA 02-02010
October 2, 2003.
Appeal from an order of Supreme Court, Livingston County (Dattilo, Jr., Referee), entered February 4, 2002, which, inter alia, denied defendant's petition seeking modification of the custody provision of the parties' Massachusetts divorce decree.
CHRISTOPHER J. LARAGY, ROCHESTER, JONES SKIVINGTON, GENESEO (J. MICHAEL JONES OF COUNSEL), FOR DEFENDANT-APPELLANT.
MAUREEN A. PINEAU, ROCHESTER, FOR PLAINTIFF-RESPONDENT.
KATHLEEN M. CONTRINO, LAW GUARDIAN, NORTH TONAWANDA, FOR ANDREW R. AND ANTHONY R.
JUDY L. JOHNSON, LAW GUARDIAN, LOCKPORT, FOR ASHLEY R.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the award of spousal support to plaintiff and as modified the order is affirmed without costs.
Memorandum:
Defendant commenced a proceeding in Family Court seeking modification of the custody provisions of the parties' Massachusetts divorce decree. Plaintiff thereafter commenced an action in Supreme Court seeking enforcement of the parties' separation agreement and additional relief. On plaintiff's motion, the Family Court proceeding was removed to Supreme Court and both matters were referred to a matrimonial referee, who was empowered to hear and determine all issues in dispute between the parties. The Referee properly denied defendant's petition. "It is well established that alteration of an established custody arrangement will be ordered only upon a showing of a change in circumstances which reflects a real need for change to ensure the best interest[s] of the child[ren]" ( Matter of Irwin v. Neyland, 213 A.D.2d 773, 773). Although there was evidence that the children's circumstances had changed following the divorce, the Referee nevertheless determined that the best interests of the children would be served by continuing their primary physical placement with plaintiff ( see Matter of Green v. Mitchell, 266 A.D.2d 884) . "A custody determination by the trial court must be accorded great deference ( see, Eschbach v. Eschbach, 56 N.Y.2d 167, 173-174) and should not be disturbed where, as here, it is supported by a sound and substantial basis in the record ( see, Matter of Gill v. Gill, 135 A.D.2d 1090, 1091)" ( Green, 266 A.D.2d at 884).
Defendant's challenge to the sufficiency of the complaint, raised for the first time on appeal, is not properly before us ( see Vitale v Fowler Oil Co., 238 A.D.2d 794, 795; Goodfarb v. Freedman, 76 A.D.2d 565, 570). The Referee did not abuse his discretion in awarding attorney's fees and expert fees to plaintiff ( see O'Brien v. O'Brien, 66 N.Y.2d 576, 590; see also DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881). Nor did the Referee exceed his authority in making those awards, or in enforcing the child support provisions of the divorce decree. Those matters were encompassed by the order of reference ( see CPLR 4311; H Y Realty Co. v. Baron, 160 A.D.2d 412, 413-414; cf. McCormack v. McCormack, 174 A.D.2d 612). However, the Referee's authority to enforce the Massachusetts divorce decree did not extend to making an award of spousal support where that decree contained no provision for such support ( see Langdon v. Mohr, 99 A.D.2d 957, 958, affd 64 N.Y.2d 819; Beaverson v. Beaverson, 72 A.D.2d 963, 964; see also Matter of Blizniak v. Blizniak, 73 A.D.2d 1050). We therefore modify the order by vacating the award of spousal support to plaintiff.