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Spence-Burke v. Burke

Supreme Court of New York, Second Department

April 26, 2017

Bonnie Spence-Burke, appellant,
v.
Kevin Burke, respondent. Index No. 200192/10

          Kristina S. Heuser, P.C., Locust Valley, NY, for appellant.

          Mejias, Milgrim & Alvarado, P.C., Glen Cove, NY (David L. Mejias of counsel), for respondent.

          Gail Jacobs, Great Neck, NY, attorney for the child.

          MARK C. DILLON, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         Appeal by the plaintiff from an interlocutory judgment of the Supreme Court, Nassau County (Stacy D. Bennett, J.), entered June 16, 2015. The interlocutory judgment, insofar as appealed from, upon a decision of the same court dated April 23, 2015, made after a nonjury trial, awarded the defendant physical custody of the parties' child during the school year and visitation during summer break, as well as decision-making authority over the child's education and school-year extracurricular activities, and awarded the plaintiff physical custody of the child during summer break and visitation during the school year, as well as decision-making authority over the child's religious activities and healthcare.

         ORDERED that the interlocutory judgment is affirmed insofar as appealed from, with costs.

         The parties married in 1996 and several years later adopted their child when he was approximately 18 months old. In 2010, the plaintiff commenced this action for a divorce and ancillary relief. During the pendency of the action, the plaintiff had temporary custody of the child, and the defendant had parenting time on Thursday evenings and alternating weekends. The trial evidence demonstrated, inter alia, that the child had been late to or absent from school 92 times for the three school years preceding the trial, during which time the plaintiff had custody of the child on weekday mornings. There was also evidence that the plaintiff interfered in the relationship between the child and the defendant. Furthermore, the court-appointed forensic psychologist opined that both parties were fit, caring parents, but that they were unable to work together. Thus, the forensic psychologist recommended that the parties be awarded equal parenting time and that they be granted decision-making authority in separate areas of the child's life.

         In the interlocutory judgment appealed from, the Supreme Court awarded the defendant physical custody of the child during the school year and awarded the plaintiff physical custody of the child during summer break. Each party was awarded visitation when the other party had physical custody of the child. The court further awarded the defendant decision-making authority over the child's education and school-year extracurricular activities, and awarded the plaintiff decision-making authority over the child's religious activities and healthcare. The plaintiff appeals.

         "Weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved" (Anonymous 2011-1 v Anonymous 2011-2, 136 A.D.3d 946, 948). "Therefore, the [trial] court's credibility findings are accorded deference and its custody determinations will not be disturbed unless they lack a sound and substantial basis in the record" (id. at 948).

         "In making an initial custody determination, the courts must consider the best interests of the child" (Rosenberg v Rosenberg, 145 A.D.3d 1052, 1054 [internal quotation marks omitted]), which "are determined by a review of the totality of the circumstances" (Bressler v Bressler, 122 A.D.3d 659, 659). Factors relevant to this best interests analysis include "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" (Rosenberg v Rosenberg, 145 A.D.3d at 1054 [internal quotation marks omitted]; see Matter of Doyle v Debe, 120 A.D.3d 676, 681; Janecka v Franklin, 150 A.D.2d 755, 757). A child's excessive absences from school may also be relevant to the best interests analysis (see Matter of Louise E. S. v W. Stephen S., 64 N.Y.2d 946, 948; Matter of Pecore v Pecore, 34 A.D.3d 1100, 1101-1102; Matter of Crocker v Crocker, 307 A.D.2d 402, 403; Frank R. v Deborah Ann R., 204 A.D.2d 615, 616). Contrary to the plaintiff's contention, the Supreme Court's award of physical custody of the child to the defendant during the school year was supported by a sound and substantial basis in the record (see Anonymous 2011-1 v Anonymous 2011-2, 136 A.D.3d at 948). The evidence demonstrated that both parties were fit, loving parents who should have equal parenting time if possible, but that because they could not work together to make decisions for the child, it was necessary to award them decision-making authority in separate areas of the child's life. Under the totality of the circumstances, it was in the child's best interests to be in the defendant's physical custody during the school year, as the child was late to or absent from school an excessive number of times while under the plaintiff's temporary custody, and the evidence showed that the plaintiff had failed to foster a relationship between the child and the defendant (see Matter of Louise E. S. v W. Stephen S., 64 N.Y.2d at 948; Matter of Doyle v Debe, 120 A.D.3d at 681; Matter of Pecore v Pecore, 34 A.D.3d at 1101-1102; Matter of Crocker v Crocker, 307 A.D.2d at 403; Frank R. v Deborah Ann R., 204 A.D.2d at 616; Janecka v Franklin, 150 A.D.2d at 757). In contrast, the defendant testified that when he had previously been responsible for driving the child to school, the child was never late to school. The defendant further testified that he would foster a relationship between the child and the plaintiff if awarded custody, and we defer to the court's decision to credit that testimony (see Anonymous 2011-1 v Anonymous 2011-2, 136 A.D.3d at 948). The court correctly gave more weight to the child's needs to attend school regularly and on time and to have relationships with both parties than to the child's expressed preference to continue living with the plaintiff (see Matter of Louise E. S. v W. Stephen S., 64 N.Y.2d at 948; Eschbach v Eschbach, 56 N.Y.2d 167, 173; Rosenberg v Rosenberg, 145 A.D.3d at 1054; Bressler v Bressler, 122 A.D.3d at 659; Frank R. v Deborah Ann R., 204 A.D.2d at 616). Because the court did not credit the plaintiff's allegations of abuse, it was not required to consider the effects of such alleged violence upon the child (see Bressler v Bressler, 122 A.D.3d at 660). The court's allocation of decision-making authority between the parties was also supported by a sound and substantial basis in the record (see Anonymous 2011-1 v Anonymous 2011-2, 136 A.D.3d at 948).

         The plaintiff waived the right to challenge the Supreme Court's decision to bifurcate the custody and economic portions of the trial, as her attorney consented to that procedure (cf. Matter of Bowe v Bowe, 124 A.D.3d 645, 645; Matter of Jeffrey D., 41 A.D.3d 845, 846; Matter of Michael T., 305 A.D.2d 610, 611).

         At trial, the plaintiff sought to admit uncertified medical records from the child's pediatrician's office. Of these records, several entries were written by Innis O'Rourke, a physician who testified at trial, and the remaining entries were written by nontestifying physicians who worked in the same medical practice as Dr. O'Rourke. The Supreme Court precluded the entries written by the nontestifying physicians on the basis that Dr. O'Rourke was permitted to lay a foundation under CPLR 4518(a) only for the entries that he had written. This was error, as a physician is permitted to lay a foundation under CPLR 4518(a) even for entries that he did not personally enter into a patient's medical records (see McClure v Baier's Automotive Serv. Ctr., 126 A.D.2d 610, 610; Walker v State of New York, 111 A.D.2d 164, 165). However, reversal is not warranted because it cannot be said that such evidence, had it been admitted, probably would have had a substantial influence upon the result of the trial (see CPLR 2002; Walker v State of New York, 111 A.D.2d at 165).

         The plaintiff's remaining contention is without merit.

          DILLON, J.P., COHEN, MALTESE ...


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