S., JOYCE v. S., ROBERT W. ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
742
CAF 15-00345
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.
IN THE MATTER OF JOYCE S., PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
ROBERT W.S., RESPONDENT-RESPONDENT.
MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT.
JENNIFER M. LORENZ, ATTORNEY FOR THE CHILD, LANCASTER.
Appeal from an order of the Supreme Court, Wyoming County
(Michael F. Griffith, A.J.), entered January 22, 2015 in a proceeding
pursuant to Family Court Act article 6. The order granted sole
custody of the subject child to respondent and supervised visitation
to petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act
article 6, which was transferred to the Integrated Domestic Violence
Part of Supreme Court (see 22 NYCRR 141.4), petitioner mother appeals
from an order that, inter alia, awarded custody of the subject child
to respondent with supervised visitation to her. Initially, we reject
the mother’s contention that the court erred in ruling that she is
estopped from contending that respondent is not the child’s biological
father. The estoppel issue was decided in respondent’s favor by an
order that was affirmed on a prior appeal (Matter of Joyce S. v Kevin
M., 132 AD3d 1419, 1420, lv denied 26 NY3d 919), and “[t]he doctrine
of collateral estoppel precludes a party from relitigating ‘an issue
which has previously been decided against him [or her] in a proceeding
in which he [or she] had a fair opportunity to fully litigate the
point’ ” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455; see Pinnacle
Consultants v Leucadia Natl. Corp., 94 NY2d 426, 431-432).
We reject the mother’s contention that the court erred in
awarding respondent custody of the child. “The court’s determination
following a hearing that the best interests of the child would be
served by such an award is entitled to great deference . . . ,
particularly in view of the hearing court’s superior ability to
evaluate the character and credibility of the witnesses . . . We will
not disturb that determination inasmuch as the record establishes that
it is the product of the court’s ‘careful weighing of [the]
appropriate factors’ . . . , and it has a sound and substantial basis
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CAF 15-00345
in the record” (Matter of Thillman v Mayer, 85 AD3d 1624, 1625; see
Matter of Walker v Carroll, 140 AD3d 1669, 1669; see generally
Eschbach v Eschbach, 56 NY2d 167, 171).
Finally, contrary to the mother’s contention, we conclude that
the “[c]ourt’s determination to impose supervised visitation is
supported by the requisite sound and substantial basis in the record”
(Matter of Rice v Cole, 125 AD3d 1466, 1467, lv denied 26 NY3d 909
[internal quotation marks omitted]; see Matter of Kirkpatrick v
Kirkpatrick, 137 AD3d 1695, 1696; see generally Matter of Van Court v
Wadsworth, 122 AD3d 1339, 1340, lv denied 24 NY3d 916), especially
considering, inter alia, the mother’s “continued attempts to undermine
[respondent’s] ability to . . . maintain a relationship with the
child” (Matter of Goldfarb v Szabo, 130 AD3d 728, 729, lv denied 26
NY3d 909, cert denied ___ US ___, 136 S Ct 1389).
Entered: September 30, 2016 Frances E. Cafarell
Clerk of the Court