Funaro v. Funaro

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 14, 2016 520716
________________________________
PAOCHING FUNARO,
Respondent,
v MEMORANDUM AND ORDER
DOMINICK R. FUNARO,
Appellant.
________________________________
Calendar Date: May 23, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
The Arquette Law Firm, PLLC, Clifton Park (Tammy J.
Arquette of counsel), for appellant.
Barrett D. Mack, Albany, for respondent.
Nicole R. Rodgers, Saratoga Springs, attorney for the
child.
__________
Lynch, J.
Appeal from a judgment of the Supreme Court (Jensen, J.),
entered September 25, 2014 in Saratoga County, awarding, among
other things, equitable distribution of the parties' marital
property, upon a decision of the court.
Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were married on August 7, 2004 and have one child
(born in 2006). The wife left the marital residence in November
2012 and commenced this action for a divorce in January 2013. In
February 2014, at the conclusion of a bench trial, which
principally focused on the issue of custody, Supreme Court issued
a temporary custody order granting the parties joint legal and
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shared physical custody of the child and authorizing the wife to
enroll the child in counseling.1 In July 2014, Supreme Court
issued written findings of fact and conclusions of law granting
the wife sole legal custody and primary physicial custody of the
child, with parenting time to the husband. The court also
distributed the marital property and debt, directed the wife to
pay maintenance to the husband and ordered the husband to pay
child support and to purchase a life insurance policy. The
judgment of divorce and order of custody were issued and filed in
September 2014. The husband now appeals.2
A court's primary concern in a child custody determination
is the best interests of the child (see Eschbach v Eschbach, 56
NY2d 167, 171 [1982]; Bowman v Engelhart, 112 AD3d 1187, 1187
[2013]). This determination is made through consideration of
"such factors as maintaining stability for the child, the child's
wishes, the home environment with each parent, each parent's past
performance, relative fitness, ability to guide and provide for
the child's overall well-being, and the willingness of each
parent to foster a relationship with the other parent" (Matter of
Jolynn W. v Vincent X., 85 AD3d 1217, 1217 [2011] [internal
quotation marks and citations omitted], lv denied 17 NY3d 713
[2011]; see Bowman v Engelhart, 112 AD3d at 1187). While joint
custody is preferred, if the parents are unable to communticate
and make decisions cooperatively, it may not be possible (see
Matter of Benjamin v Lemasters, 125 AD3d 1144, 1145 [2015];
Matter of DiMele v Hosie, 118 AD3d 1176, 1177 [2014]).
Indisputably, the evidence demonstrated that both parents
1
By this temporary order, Supreme Court primarily
formalized the informal custodial arrangements that the parties
had been attempting to follow. We reject the husband's
threshhold argument that the delay between the temporary order
and the permanent order necessitated any further fact-finding
(compare E.V. v R.V., 130 AD3d 920, 921-922 [2015]).
2
Except insofar as it relates to his argument that he is
unable to comply with Supreme Court's economic award, the husband
does not challenge the court's child support order.
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love the child and were able to provide an adequate home
environment following their separation. Although the wife worked
two jobs, the evidence revealed that she had the more flexible
schedule and that she was the parent who was primarily
responsible for the child's health care and education needs. The
evidence also demonstrated that, since their separation, the
parties rarely agreed on what was best for the child. For
example, at trial, the parties testified that they could not
agree to send the child to summer school or to counseling, even
though both were recommended by the child's teachers. While the
wife favored pursuing both recommendations, the husband explained
that, even though he did not speak to the teachers about these
recommendations, he refused to consent because he knew what the
child needed to do to remain on track academically during the
summer. As for counseling, the husband explained that he spent
hours talking to and "analyzing" the child and he did not believe
it was necessary – an approach we find unsettling.
Although there was no finding of alienation, there was
evidence that the husband engaged the child in inappropriate
conversations regarding the parties' separation, their financial
situation and the wife and her paramour, and that he even
discussed the wife's trial testimony during the course of the
fact-finding hearing with the child. Mary C. O'Connor, a
psychologist assigned by Supreme Court, interviewed the parties
and the child and reported that the child "echoed several adult-
like negative remarks" about the wife. O'Connor also confirmed
that the child had been "compromised" by the husband's
"disparaging behavior" and opined that the husband demonstrated
poor judgment by treating the child as his "buddy," allowing the
child to play adult/combat-themed video games and to access the
Internet without supervision. In contrast, she described the
wife as an "exceptionally skilled, organized, and consistently
positive parent capable of providing [the child] with the
structure and support necessary to facilitate his development and
encourage a sustained positive father-son relationship."
Although the husband asserted that O'Connor lied in her
report, Supreme Court discredited his testimony and we defer to
the court's determination in this regard (see Matter of Ryan v
Lewis, 135 AD3d 1135, 1137 [2016]). Further, we are mindful that
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both the attorney for the child and O'Connor were amenable to the
parties sharing custody of the child, but neither position was
binding on the trial court (see Matter of Virginia C. v Donald
C., 114 AD3d 1032, 1035 [2014]; Matter of Conway v Gartmond, 108
AD3d 667, 668 [2013]). Giving the requisite deference to Supreme
Court's credibility determinations (see Matter of DiMele v Hosie,
118 AD3d at 1177), we find that the award of sole legal and
primary physical custody to the wife was supported by a sound and
substantial basis in the record (see Fermon v Fermon, 135 AD3d
1045, 1046 [2016]; Robert B. v Linda B., 119 AD3d 1006, 1008-1010
[2014], lv denied 24 NY3d 906 [2014]; Matter of Festa v Dempsey,
110 AD3d 1162, 1163 [2013]; Jeannemarie O. v Richard P., 94 AD3d
1346, 1348 [2012]).
The husband also contends that Supreme Court should have
granted him more liberal parenting time. The trial court has
broad discretion in fashioning a parenting schedule that is in
the best interests of the child (see Matter of Finkle v Scholl,
___ AD3d ___, ___, 2016 NY Slip Op 04293, *3 [2016]. "It is well
settled that '[the court's] . . . findings in [this] regard are
entitled to great deference unless they lack a sound and
substantial basis in the record'" (Matter of Wagner v Wagner, 124
AD3d 1154, 1154 [2015], quoting Matter of Daniel v Pylinski, 61
AD3d 1291, 1292 [2009]). Here, in addition to extended vacation
periods and shared holidays, Supreme Court granted the husband
parenting time every other weekend and one weeknight each week.
Inasmuch as this provides "frequent and regular access" to the
child, we discern no abuse of discretion (Matter of Daniel v
Pylinski, 61 AD3d at 1292 [internal quotation marks and citation
omitted]; see Musacchio v Musacchio, 107 AD3d 1326, 1329 [2013]).
The husband also argues that Supreme Court's equitable
distribution award was unjust. It is well settled that equitable
distribution of marital property does not necessarily require
property to be divided equally (see Vertucci v Vertucci, 103 AD3d
999, 1001 [2013]). Because Supreme Court has "substantial
discretion" when making an equitable distribution award, we will
not disturb its determination "absent an abuse of discretion or
failure to consider the requisite statutory factors" (Buchanan v
Buchanan, 132 AD3d 1182, 1183 [2015] [internal quotation marks
and citations omitted]). Here, the court determined that the
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marital residence,3 certain checking and savings accounts, the
wife's pension and 401(k) account, five vehicles, the husband's
trade certificate and various household items and jewelry were
marital property.4 Further, the court determined that, in
addition to the note and mortgage on the marital residence, the
parties borrowed $16,000 to perform certain home repairs during
the marriage. Further, the parties had marital debt consisting
of two credit cards with balances of $4,750 and $5,000, a
personal loan in the amount of $6,949, a line of credit in the
amount of $9,867 obtained to finance the husband's pursuit of the
trade certificate and the husband's education loans. The court
directed the parties to sell the marital residence, but awarded
the husband exclusive occupancy and directed him to pay the
mortgage and all carrying charges during the pendency of the
sale. The husband was also awarded one half of the net proceeds
after the sale of the marital residence, one half of the wife's
401(k) account and one half of the proceeds from the sale of the
vehicles and household items. With regard to the marital debt,
the court essentially divided it equally between the parties,
directed the wife to assume responsibility for payment of the
larger credit card balance, and the card with the smaller balance
was given to the husband. He was also directed to pay his own
student loan debt.
The husband's primary argument on appeal is that Supreme
Court did not give adequate consideration to the statutory
factors before assigning him responsibility for essentially one
half of the parties’ marital debt, and he contends that he does
not have the means to meet his monthly financial obligations
resulting from the distributive award. Here, there was no
evidence that the debt was solely incurred by either party but,
rather, that it was obtained for household improvements and
expenses. Considering the circumstances and that Supreme Court
3
The parties paid $197,500 for the marital residence. At
the time of trial, its fair market value was $245,000 and there
was $181,000 payable on the note.
4
There was no evidence presented with regard to the value
of the trade certificate.
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awarded the husband essentially one half of the marital assets,
we cannot say that the court abused its discretion by allocating
the marital debt substantially equally to each party (see Cornish
v Eraca-Cornish, 107 AD3d 1322, 1323-1324 [2013]; McKeever v
McKeever, 8 AD3d 702, 702-703 [2004]; Corbett v Corbett, 6 AD3d
766, 768 [2004]).
The husband also challenges Supreme Court's maintenance
award, consisting of $200 per week from July 2014 to December
2014, reduced to $100 per week throughout 2015. This
determination is left to the trial court's discretion and will
not be disturbed as long as the court explains the basis for its
conclusions, considers the parties' predivorce standard of living
and statutory factors – such as the income and property of the
parties, the length of the marriage, the age and health of the
parties, the need of either party to obtain education or training
and the equitable distribution of the marital property (see
Domestic Relations Law § 236 [B] [former (6)]; Orioli v Orioli,
129 AD3d 1154, 1155 [2015]). Spousal maintenance is generally
not supposed to be permanent, but is intended to allow the
recipient time to become self-sufficient (see Vantine v Vantine,
125 AD3d 1259, 1261 [2015]). Here, although he does not earn as
much as the wife does, the husband is young, healthy and
gainfully employed. Under the circumstances, Supreme Court's
maintenance award was not an abuse of discretion because the
court adequately considered the statutory factors and noted the
husband's ability to support himself (see Curley v Curley, 125
AD3d 1227, 1228-1229 [2015]; Quarty v Quarty, 96 AD3d 1274, 1277
[2012]).
Finally, although we find that Supreme Court was authorized
to direct the husband to purchase a life insurance policy in the
amount of $250,000 (see Murray v Murray, 101 AD3d 1320, 1325
[2012], lv dismissed 20 NY3d 1085 [2013]), the husband should
have been allowed to obtain a declining term policy that would
reduce the amount of coverage by the amount of child support that
he actually paid (see Quinn v Quinn, 61 AD3d 1067, 1073 [2009];
Matter of Anonymous v Anonymous, 31 AD3d 955, 957 [2006]).
Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
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ORDERED that the judgment is modified, on the facts,
without costs, by reversing so much thereof as directed defendant
to maintain a $250,000 life insurance policy; defendant is
permitted to obtain a declining term life insurance policy in the
amount of $250,000; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court