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Matter of Fiore v Gima, 2024 NY Slip Op 02913 [227 AD3d 1071]

May 29, 2024

Appellate Division, Second Department

[*1]

In the Matter of Peter Fiore, Appellant,

v

Michelle Gima, Respondent. (Proceeding No. 1.) In the Matter of Michelle Gima, Respondent, v Peter Fiore, Appellant. (Proceeding Nos. 2 and 3.)

Mitev Law Firm, P.C., Stony Brook, NY (Vesselin Mitev of counsel), for appellant.

James J. O’Rourke & Associates, PLLC, Smithtown, NY, for respondent.

Geanine Towers, Brooklyn, NY, attorney for the child.

In related proceedings pursuant to Family Court Act articles 6 and 8, the father appeals from an order of the Family Court, Suffolk County (Mary Porter, J.), dated March 10, 2023. The order, insofar as appealed from, after a hearing, granted the mother’s petition to modify the custody provisions of a so-ordered stipulation of settlement dated June 8, 2017, so as to award her sole legal custody of the parties’ child, in effect, denied the father’s petition to modify the parental access provisions of the so-ordered stipulation of settlement, inter alia, so as to expand his parental access with the child, and granted the mother’s family offense petition to the extent of finding that the father committed the family offense of attempted assault in the third degree.

Ordered that the order is modified, on the facts, by deleting the provision thereof granting the mother’s family offense petition to the extent of finding that the father committed the family offense of attempted assault in the third degree, and substituting therefor a provision denying the mother’s family offense petition; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The parties, who were never married, are the parents of a child born in 2016. Pursuant to a so-ordered stipulation of settlement dated June 8, 2017 (hereinafter the so-ordered stipulation), the parties agreed, inter alia, to joint legal custody of the child, with residential custody to the mother and parental access to the father. Thereafter, the parties commenced various modification, violation, and family offense proceedings against one another. As relevant to this appeal, in May 2019, the father filed a petition to modify the parental access provisions of the so-ordered stipulation, among other things, so as to expand his parental access with the child. In [*2] September 2021, the mother filed a family offense petition, alleging that during an incident that occurred earlier that month, the father had committed family offenses included in Family Court Act § 812 (1) against her. In February 2022, the mother filed a petition to modify the custody provisions of the so-ordered stipulation so as to award her sole legal custody of the child. Between February and December 2022, the Family Court conducted a hearing on those petitions, among others. In an order dated March 10, 2023, the court, inter alia, granted the mother’s petition to modify the custody provisions of the so-ordered stipulation so as to award her sole legal custody of the child, in effect, denied the father’s petition to modify the parental access provisions of the so-ordered stipulation, and granted the mother’s family offense petition to the extent of finding that the father committed the family offense of attempted assault in the third degree. The father appeals.

“Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child” ( Matter of Graffagnino v Esposito , 223 AD3d 805 , 807 [2024] [internal quotation marks omitted]). “The required change in circumstances may be found to exist, among other circumstances, where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the child[ ]. In any event, the paramount concern when making such a determination is the best interests of the child under the totality of the circumstances” ( Matter of Luke v Erskine , 222 AD3d 868 , 870 [2023] [alterations, citation and internal quotation marks omitted]). “When deciding whether a modification is in a child’s best interests, factors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent. Stability and continuity in a child’s life are important factors” ( Matter of Martinez v Gaddy , 223 AD3d 816 , 817 [2024] [alterations, citation and internal quotation marks omitted]). “The existence or absence of any one factor in determining custody cannot be determinative on appellate review since the court is to consider the totality of the circumstances” ( Matter of Cooper v Nicholson , 167 AD3d 602 , 604 [2018]). “In reviewing custody and parental access determinations, this Court’s authority is as broad as that of the hearing court. However, since the Family Court’s determination depends to a great extent upon its assessment of, among other things, the credibility of the witnesses, the court’s determination should not be disturbed unless it lacks a sound and substantial basis in the record” ( Matter of Kim v Becker , 223 AD3d 813 , 815 [2024] [citation and internal quotation marks omitted]).

Here, the Family Court correctly determined that a change in circumstances existed to warrant modification of the so-ordered stipulation. “Joint custody is encouraged as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. However, joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child” ( Matter of Martinez v Gaddy , 223 AD3d at 818 [internal quotation marks omitted]). The evidence at the hearing revealed that “the father habitually insulted and belittled the mother when she tried to communicate with him about the child” ( Matter of Robinson v Mustakas , 214 AD3d 880 , 881 [2023]). The record otherwise demonstrated “that joint legal custody was no longer in the best interests of the child in light of the parties’ inability to effectively cooperate and communicate, and the father does not contend otherwise” ( Matter of Martinez v Gaddy , 223 AD3d at 818; see Matter of Luke v Erskine , 222 AD3d at 871; Matter of Pierce v Caputo , 214 AD3d 877 , 878-879 [2023]).

Contrary to the father’s contention, there was a sound and substantial basis in the record for the Family Court’s determination to award sole legal custody to the mother. “While the evidence adduced at the hearing revealed that both parents love the child,” as the court concluded, “it also indicated that the mother was better suited to provide for the child’s overall well-being and that awarding her sole legal custody was therefore in the child’s best interests” ( Matter of Martinez v Gaddy , 223 AD3d at 818 [internal quotation marks omitted]). The record revealed that the father repeatedly made baseless accusations about the mother, and by doing so, the father “needlessly subjected the child to . . . investigation[s] by Child[ ] Protective Services” and local police, “thus [*3] placing h[is] own interests above those of the child” ( Cucinello v Cucinello , 234 AD2d 365, 366 [1996]; see Matter of Fargasch v Alves , 116 AD3d 774 , 775 [2014]). “Accepting the court’s credibility determinations, the evidence showed, inter alia, . . . that the [mother] was more likely to foster the child’s relationship with the [father] than the [father] would with respect to the child’s relationship with the [mother]” ( Matter of McFarlane v Jones , 193 AD3d 936 , 937 [2021]; see Matter of Kim v Becker , 223 AD3d at 815). “Moreover, the record indicates that the child had [a] relationship[ ] with the mother’s other child[ ], his half-sibling[ ]” ( Matter of Martinez v Gaddy , 223 AD3d at 819).

However, the Family Court incorrectly granted the mother’s family offense petition to the extent of finding that the father committed the family offense of attempted assault in the third degree. “In a family offense proceeding, the allegations of the petition must be supported by a fair preponderance of the evidence” ( Matter of McClean v McClean , 212 AD3d 624 , 625 [2023]). “The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, whose determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed unless clearly unsupported by the record” ( Matter of Blamoville v Culbertson , 151 AD3d 1058 , 1059-1060 [2017]). Here, contrary to the father’s contention, the family offense of attempted assault in the third degree is not a legal impossibility, at least not insofar as premised upon Penal Law § 120.00 (1) ( see Matter of McClean v McClean , 212 AD3d at 625; cf. People v Nieves , 73 AD3d 1087 , 1087-1088 [2010]; Matter of John FF. , 195 AD2d 807, 807-808 [1993]). Nevertheless, “even according due deference to [the court’s credibility] determinations, the evidence presented at the fact-finding hearing failed to establish that the [father] committed acts which constituted the family offense of attempted assault in the third degree” ( Matter of Bunin v Bunin , 187 AD3d 1180 , 1181 [2020], citing Penal Law §§ 110.00, 120.00 [1]; cf. Matter of McClean v McClean , 212 AD3d at 625).

Finally, to the extent the father challenges so much of the order as, in effect, denied his petition to modify the parental access provisions of the so-ordered stipulation, his contentions are without merit. Dillon, J.P., Chambers, Genovesi and Ventura, JJ., concur..