Jacobs v. Jacobs

—In a matrimonial action, the defendant wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County (Vitale, J.), entered April 25, 1984, as (1) limited her distributive share of the marital property to a $10,000 cash award plus two items of personal property, (2) failed to grant her a money judgment for arrears of pendente lite support and maintenance, and (3) failed to grant her a money judgment for medical bills paid by her which should have been reimbursed by the plaintiff husband’s medical insurance carrier; and the plaintiff husband cross-appeals, as limited by his brief, from so much of the same judgment as granted custody of the parties’ two children to the defendant.

Judgment modified, by (1) deleting the words "marital property” from the seventh decretal paragraph thereof and substituting therefor the words "marital residence” and (2) deleting the eighth decretal paragraph. As so modified, judgment affirmed insofar as appealed from, with costs to the defendant, and matter remitted to the Supreme Court, Nassau County, for further proceedings with respect to the distribution of the remaining marital property.

Turning first to the custody issue, we agree with Special Term that the interests and welfare of the parties’ two children will best be served by entrusting their custody to the mother. Special Term, after carefully reviewing the testimony adduced by both parties, concluded, in part, that the father, by virtue of his work schedule, "would be hard put * * * to exercise supervision of these children”. At trial, the father was confronted with the fact that the demands of his employment precluded him from caring for the children during the day. In response, he explained that he had solicited the aid of his mother, who had agreed to leave her own job, and that he had devised a plan whereby she would care for the children while he was at work. This arrangement would require his mother to travel from her home in New Hyde Park to Massapequa Park, each and every workday. Expert testimony, elicited from Dr. Allan I. Stempler, of the Division of Forensic Services, indicated, however, that the plaintiff’s mother was not considered to be an ideal person to care for the children on a daily basis. In stark contrast to the arrangements provided by the father, the mother’s work schedule allows her to frequently spend prolonged periods of time with her children.

The ability to provide for the emotional and intellectual growth of one’s children, which, as our dissenting colleague aptly recognizes, is of paramount important (see, Eschbach v Eschbach, 56 NY2d 167, 172), cannot be measured solely on a qualitative basis. Consideration must also be given to the availability of a parent to tend to the children’s needs and to participate in their development. Custody options which allow for the direct care and guidance of children by a parent rather than by third parties are naturally preferred. In the instant case, the mother has indicated both a willingness as well as an ability to provide for the needs of her children. Under the circumstances of this case, the stability and continuity which the other is able to provide, because of her accessibility, militates against disrupting the children’s lives by transferring custody to the father. While we acknowledge, as did Special Term, that the father’s suitability and fitness as a parent is in no way disparaged by the record, and that the psychological evidence preferred by the litigants does raise a sharp dispute as to which parent should be awarded custody, we are, nevertheless, unable to conclude that Special Term, which had an opportunity to observe the demeanor of the witnesses, rendered a decision contrary to the weight of the evidence.

With respect to the other issues raised on appeal, the trial evidence on the question of equitable distribution of the parties’ marital property focused primarily on the marital residence. While we find that the distributive award of $10,-000 in favor of the defendant is adequate to compensate her for her interest in the marital home (see, Alwell v Alwell, 98 AD2d 549), the record reveals that there is a considerable amount of personal and other marital property which Special Term did not address in its judgment, possibly as a result of the*inadequacy of the record before it. Consequently, a further hearing is required so that all of the marital property may be distributed equitably (see, e.g., Bistany v Bistany, 66 AD2d 1026).

We have examined the parties’ remaining contentions and find them to be without merit. Brown, Weinstein and Eiber, JJ., concur.