CHAPPELL, RUTH M. v. DIBBLE, BRUCE C. , 919 N.Y.2d 445 ( 2011 )


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  •          SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    354
    CAF 09-02015
    PRESENT: SCUDDER, P.J., CENTRA, SCONIERS, GORSKI, AND MARTOCHE, JJ.
    IN THE MATTER OF RUTH M. CHAPPELL,
    PETITIONER-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    BRUCE C. DIBBLE, RESPONDENT-APPELLANT.
    SCHLATHER, STUMBAR, PARKS & SALK, ITHACA (DAVID M. PARKS OF COUNSEL),
    FOR RESPONDENT-APPELLANT.
    JASON J. BOWMAN, ATTORNEY FOR THE CHILD, ONTARIO, FOR RICHARD D.
    Appeal from an order of the Family Court, Ontario County (James
    R. Harvey, J.H.O.), entered September 4, 2009 in a proceeding pursuant
    to Family Court Act article 6. The order, inter alia, modified the
    parties’ judgment of divorce by awarding primary physical custody of
    the parties’ child to petitioner.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Respondent father appeals from an order modifying
    the prior judgment of divorce by awarding primary physical custody of
    the parties’ child to petitioner mother and visitation to the father.
    We conclude at the outset that Family Court had jurisdiction over this
    proceeding because the initial custody determination was made by a
    court of this State, i.e., Supreme Court, as part of the judgment of
    divorce (see Domestic Relations Law § 76-a [1]). We further conclude
    that the exceptions set forth in Domestic Relations Law § 76-a (1) do
    not apply under the circumstances here. Contrary to the father’s
    contention, the court was not required to decline to exercise its
    jurisdiction based on any unjustifiable conduct of the mother (see §
    76-g [1]).
    With respect to the merits, we conclude that the court was in the
    best position to evaluate the character and credibility of the
    witnesses, and we accord great weight to the court’s determination
    regarding custody (see Matter of Paul C. v Tracy C., 209 AD2d 955).
    The court weighed the appropriate factors in determining that
    modification of the judgment by awarding primary physical custody to
    the mother was in the best interests of the child, and that
    determination has a sound and substantial basis in the record (see
    -2-                     354
    CAF 09-02015
    Matter of Jones v Houck, 280 AD2d 969).
    Entered:   March 25, 2011                 Patricia L. Morgan
    Clerk of the Court
    

Document Info

Docket Number: CAF 09-02015

Citation Numbers: 82 A.D.3d 1669, 919 N.Y.2d 445, 919 NYS2d 445, 2011 NY Slip Op 02254, 919 N.Y.S.2d 445

Filed Date: 3/25/2011

Precedential Status: Precedential

Modified Date: 11/1/2024