MERCADO, RAFAEL A. v. FRYE, KATHY R.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1483
CAF 11-01763
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
IN THE MATTER OF RAFAEL A. MERCADO,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
KATHY R. FRYE, RESPONDENT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
LIPSITZ GREEN SCIME CAMBRIA, LLP, BUFFALO (MELISSA A. CAVAGNARO OF
COUNSEL), FOR PETITIONER-RESPONDENT.
JENNIFER M. LORENZ, ATTORNEY FOR THE CHILD, LANCASTER, FOR JESSICA M.
Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, J.), entered August 1, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted sole
custody of the subject child to petitioner.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner father commenced this proceeding seeking
to modify the parties’ joint custody arrangement pursuant to which
respondent mother had primary physical residence of the parties’
children in California. The father resides in New York. The mother
appeals from an order modifying that custody arrangement by awarding
the father sole custody of the parties’ youngest child (child).
Contrary to the mother’s contention, we conclude that Family
Court had exclusive, continuing jurisdiction to determine custody
pursuant to Domestic Relations Law § 76-a. It is undisputed that the
initial child custody determination was rendered in New York, and we
conclude that there is “ample evidence of a significant connection by
the child with this state for Family Court to retain jurisdiction”
(Matter of Hissam v Mancini, 80 AD3d 802, 803, lv denied in part and
dismissed in part 16 NY3d 870; see Domestic Relations Law § 76-a [1]
[a]). The father’s extensive parenting time took place in New York,
the child has extended family in this state, and her medical and
dental providers are located here (see Hissam, 80 AD3d at 803; Matter
of Sutton v Sutton, 74 AD3d 1838, 1839).
We also reject the mother’s contention that the court should have
dismissed the modification petition on the ground that New York is an
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CAF 11-01763
inconvenient forum (see Domestic Relations Law § 76-f). There was
substantial evidence in this state from which to make a custody
determination inasmuch as the father, the child, the child’s treating
therapist, the child’s extended family, and the child’s medical and
dental providers are located in New York (see Sutton, 74 AD3d at 1839-
1840). In addition, the New York courts were more familiar with the
parties and the child than the California courts, and the court
permitted the mother to appear electronically for all proceedings
except the fact-finding hearing (see Matter of Belcher v Lawrence, 98
AD3d 197, 202; Sutton, 74 AD3d at 1840; see generally Matter of
Anthony B. v Priscilla B., 88 AD3d 590, 590).
Contrary to the contention of the mother, we conclude that the
court properly determined that “the father established the requisite
change in circumstances to warrant an inquiry into whether the best
interests of the child would be served by modifying the existing
custody arrangement” (Matter of Burrell v Burrell, 100 AD3d 1545,
1545). We further conclude that there is a sound and substantial
basis in the record to support the court’s determination that it was
in the child’s best interests to award sole custody to the father (see
generally Matter of Deborah E.C. v Shawn K., 63 AD3d 1724, 1725, lv
denied 13 NY3d 710; Matter of Jeremy J.A. v Carley A., 48 AD3d 1035,
1036; Matter of Khaykin v Kanayeva, 47 AD3d 817, 817). Although the
child lived in California with her mother for approximately five
years, the quality of the parties’ respective home environments, the
parties’ ability to provide for the child’s emotional and intellectual
development, the financial status of the parties, and the needs and
expressed desires of the child all support the court’s custody
determination (see Eschbach v Eschbach, 56 NY2d 167, 172-173; Fox v
Fox, 177 AD2d 209, 210). The child, who was 13 years old at the time
of the hearing, expressed her desire to reside with the father and,
given her age and relative maturity, her wishes “were entitled to
substantial weight” (Matter of Louis M. v Administration for
Children’s Servs., 69 AD3d 633, 634; see Matter of Samuel S. v
Dayawathie R., 63 AD3d 746, 747). We thus conclude that the court’s
best interests determination was “based on [a] careful weighing of the
appropriate factors . . . , including the court’s firsthand assessment
of the character and credibility of the parties and their witnesses,”
and we see no basis to disturb that determination (Matter of Armstrong
v Robinson, 66 AD3d 1365, 1365, lv denied 13 NY3d 713 [internal
quotation marks omitted]; see Matter of Tisdale v Anderson, 100 AD3d
1517, 1517-1518).
The mother further contends that the court’s finding that she
willfully violated the divorce judgment is not supported by the weight
of the evidence. Initially, we note that there is no finding of
contempt against the mother in the order appealed from, and there is
no other order in the record containing such a finding. Rather, in
its bench decision on the father’s modification and contempt
petitions, the court found the mother in contempt of court, and stated
that it would consider the mother’s violation of the divorce judgment
as “relevant to [its] findings in the custody and visitation matter.”
There is thus no appealable civil contempt determination (see Matter
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CAF 11-01763
of Culton v Culton, 277 AD2d 935, 936; see generally Fang v Home Depot
USA, Inc., 99 AD3d 1236, 1236; Geddes Fed. Sav. & Loan Assn. v
Ferrante, 244 AD2d 965, 965).
In any event, we reject the mother’s contention that the court’s
finding of a willful violation is not supported by the weight of the
evidence. Indeed, the evidence, including the mother’s own testimony,
supported the court’s finding that the mother failed to comply with
that part of the divorce judgment regarding travel expenses for
visitation (see Matter of Keefe v Adam, 85 AD3d 1225, 1227; Matter of
Brown v Marr, 23 AD3d 1029, 1030-1031). To the extent that the mother
challenges the court’s consideration of her violation of the divorce
judgment in making its custody determination, we conclude that the
court had discretion to consider that violation as part of its best
interests analysis (see West v Vanderhorst, 92 AD3d 615, 616; Matter
of Seacord v Seacord, 81 AD3d 1101, 1103-1104).
Finally, the father’s contention that the court should have
imposed contempt sanctions against the mother and awarded him
attorney’s fees is not properly before us inasmuch as he abandoned his
cross appeal (see generally Bennett v McGorry, 34 AD3d 1290, 1291;
Matijiw v New York Cent. Mut. Fire Ins. Co., 292 AD2d 865, 866).
Entered: March 22, 2013 Frances E. Cafarell
Clerk of the Court