Mintz, Respondent, v. Mintz, Appellant.

1998-08561

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

266 A.D.2d 439; 698 N.Y.S.2d 889; 1999 N.Y. App. Div. LEXIS 12009

October 15, 1999, Submitted
November 22, 1999, Decided

COUNSEL: Sheresky Aronson & Mayefsky, LLP, New York, N.Y. (Alton L. Abramowitz of counsel), and Mintz & Gold, LLP, New York, N.Y., for appellant (one brief filed).

Koopersmith & Brown, LLP, Lake Success, N.Y. (Kenneth Koopersmith, Debra L. Rubin, and Amy Lesserson Brown of counsel), for respondent.

JUDGES: O’Brien, J. P., Krausman, Florio and Feuerstein, JJ., concur.

Ordered that the appeal from so much of the order as referred the defendant’s motion for downward modification of his pendente lite support and maintenance obligations to the trial court is dismissed; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

Two months after the Supreme Court issued a pendente lite order fixing the defendant’s temporary support and maintenance obligations, he moved for downward modification of those amounts upon the ground that there had been a substantial change in his circumstances. In opposition to the motion, the plaintiff disputed the defendant’s claim that his financial condition had deteriorated since the issuance of the pendente lite order. Faced with conflicting claims from the parties, the Supreme Court referred the defendant’s motion to the trial court for determination.

The defendant may not appeal, as of right, from the portion of the order which referred his motion to the trial court for determination, since it merely deferred resolution of his motion until trial, where the parties’ financial circumstances may be fully explored without the additional delay of an interim hearing. Under these circumstances, the challenged ruling does not affect a substantial right (see, CPLR 5701 [a]; see also, Marine Midland Bank v Rashid, 259 AD2d 739; Walis v Walis, 192 AD2d 598, 600). Accordingly, the defendant’s appeal from that portion of the order is dismissed.

Contrary to the defendant’s contention, the plaintiff’s application for an additional interim attorney’s fee was supported by sufficient documentation to establish that such an award was necessary to enable her to properly prosecute this action (see, Domestic Relations Law § 237 [a]). Moreover, considering the respective financial circumstances of the parties, and the issues involved in this case, the Supreme Court did not improvidently exercise its discretion in awarding the wife an additional interim attorney’s fee (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879; Appold v Savaglio, 249 AD2d 347; Piali v Piali, 247 AD2d 455).

O’Brien, J. P., Krausman, Florio and Feuerstein, JJ., concur.

Norman, Appellant, v Dykman, Respondent. (Index No. 27748/96)

2004-03452

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2005 NY Slip Op 8294; 23 A.D.3d 358; 808 N.Y.S.2d 80; 2005 N.Y. App. Div. LEXIS 12315

November 7, 2005, Decided

COUNSEL: Fisher & Golden, P.C., East Hampton, N.Y. (Karen Golden of counsel), for appellant.

Kramer & Rabinowitz, LLC, Commack, N.Y. (Debra L. Rubin of counsel), for respondent.

JUDGES: THOMAS A. ADAMS, J.P., DANIEL F. LUCIANO, PETER B. SKELOS, ROBERT A. LIFSON, JJ. ADAMS, J.P., LUCIANO, SKELOS and LIFSON, JJ., concur.

In a matrimonial action in which the parties were divorced by judgment dated November 17, 1997, which incorporated but did not merge the terms of a stipulation of settlement, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated March 22, 2004, as denied her motion for a downward modification of her maintenance and child support obligations, the appointment of a Law Guardian for the parties’ children, and a hearing on the issue of custody, and granted the defendant’s motion for arrears in the sum of $ 77,500.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff failed to demonstrate that continued enforcement of her obligation to pay maintenance under the parties’ stipulation of settlement, which was incorporated but not merged into their judgment of divorce, would create an “extreme hardship” (Matter of Ross v Ross, 297 AD2d 286, 287, 745 NYS2d 917 [2002]; seePintus v Pintus, 104 AD2d 866, 867-868, 480 NYS2d 501 [1984]; see also Domestic Relations Law § 236 [B] [9] [b]). She also failed to establish a substantial, unanticipated, and unreasonable change in circumstances warranting a reduction in child support (see Matter of Boden v Boden, 42 NY2d 210, 213, 366 NE2d 791, 397 NYS2d 701 [1977]; Praeger v Praeger, 162 AD2d 671, 673, 557 NYS2d 394 [1990]; Nordhauser v Nordhauser, 130 AD2d 561, 562, 515 NYS2d 501 [1987]). Thus, the Supreme Court properly denied that branch of her motion which was for a downward modification.

Under the circumstances, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was for the appointment of a Law Guardian (see Riccio v Riccio, 21 AD3d 1107, 803 NYS2d 603 [2005]; Dodaro v Dodaro, 269 AD2d 420, 702 NYS2d 905 [2000]). In addition, the Supreme Court properly found that there was insufficient evidence to warrant a hearing on the issue of custody (see Nash v Yablon-Nash, 16 AD3d 471, 790 NYS2d 718 [2005]; Matter of Timson v Timson, 5 AD3d 691, 774 NYS2d 751 [2004]).

The plaintiff’s remaining contentions are without merit. Adams, J.P., Luciano, Skelos and Lifson, JJ., concur.

Ocampo, Respondent, v Jimenez, Appellant.

2005-03909, (Docket No. V-20887/04)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2006 NY Slip Op 2380; 27 A.D.3d 753; 815 N.Y.S.2d 629; 2006 N.Y. App. Div. LEXIS 3795

March 28, 2006, Decided

COUNSEL: Frederick Klarer, Melville, N.Y., for appellant.

Kramer & Rabinowitz, LLC, Commack, N.Y. (Debra L. Rubin of counsel), for respondent.

Beth A. Rosenthal, Deer Park, N.Y., Law Guardian for the child.

JUDGES: ROBERT W. SCHMIDT, J.P., THOMAS A. ADAMS, FRED T. SANTUCCI, PETER B. SKELOS, JJ. SCHMIDT, J.P., ADAMS, SANTUCCI and SKELOS, JJ., concur.

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (MacKenzie, J.), dated March 23, 2005, which, after a hearing, awarded custody of the parties’ child to the mother.

Ordered that the order is affirmed, without costs or disbursements.

The Family Court’s determination as to custody should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Ortiz v Maharaj, 8 AD3d 574, 779 NYS2d 220 [2004]; Matter of Skratt v Henry, 6 AD3d 719, 775 NYS2d 544 [2004]). Furthermore, the Family Court’s determination as to credibility should be accorded great weight on appeal, since it saw and heard the witnesses (see Eschbach v Eschbach, 56 NY2d 167, 173, 436 NE2d 1260, 451 NYS2d 658 [1982]; Matter of Maust v Pignetti, 270 AD2d 274, 703 NYS2d 531 [2000]).

Contrary to the father’s contentions, the evidence presented at the hearing amply supports the Family Court’s determination that awarding sole custody to the mother is in the child’s best interests (see Matter of Jarushewsky v Baez, 7 AD3d 713, 776 NYS2d 847 [2004]; Vinciguerra v Vinciguerra, 294 AD2d 565, 743 NYS2d 139 [2002]). An important factor in the Family Court’s determination was the finding, supported by the record, that the father was less than credible throughout the proceeding. Given that the mother was supportive of visitation, that both parties are loving parents, that the mother was available to [*2] care for the child and address her special needs, and that the mother was the primary caretaker of the child since her birth, the Family Court properly awarded custody of the child to the mother (see Cohen v Merems, 2 AD3d 663, 664, 768 NYS2d 637 [2003]).

We note that the order of protection issued in this case was not appealed from and is not subject to review on this appeal. Schmidt, J.P., Adams, Santucci and Skelos, JJ., concur.