C. Lomtevas, Brooklyn, for appellant.
Wallack Firm, P.C., New York (Robert M. Wallack of counsel),
Rabin Stine Schumann LLP, New York (Harriet Newman Cohen of
counsel), attorney for the child.
Acosta, P.J., Tom, Webber, Singh, JJ.
of divorce, Supreme Court, New York County (Matthew F.
Cooper, J.), entered August 16, 2016, inter alia,
incorporating an order, same court and Justice, entered March
1, 2016, which awarded defendant sole physical and legal
custody of the parties' child, granted plaintiff
supervised visitation, and granted a five-year stay-away
order of protection in defendant's favor, and awarding
defendant basic child support beginning July 1, 2016, and
child support arrears for the period from December 2013
through June 2016, unanimously affirmed, without costs.
Appeal from the March 1, 2016 custody and visitation order
unanimously dismissed, without costs, as subsumed in the
appeal from the judgment.
court's determination that it was in the child's best
interests to award sole custody to defendant has a sound and
substantial evidentiary basis (see Matter of Frank M. v
Donna W., 44 A.D.3d 495');">44 A.D.3d 495 [1st Dept 2007]; see also
Eschbach v Eschbach, 56 N.Y.2d 167, 171-173 ). It
was based in part on the court's findings that plaintiff
committed acts of domestic violence against defendant, both
during her pregnancy with the child and after the child was
born, rendering joint custody impossible.
court saw both parties testify, and there is support in the
record for its determination that defendant and the three
witnesses she called were credible, whereas plaintiff's
testimony regarding the domestic violence incidents was
frequently not truthful. Photographs of defendant's
injuries taken shortly after the incidents of abuse, as well
as defendant's witnesses, corroborated defendant's
account. Moreover, plaintiff's conduct and outbursts
throughout the trial reinforced the court's conclusions
that, unlike defendant, plaintiff was unable to control his
evidence that plaintiff had physically and verbally harmed
the child's mother, engaged in abusive litigation
tactics, and lacked the emotional restraint and personality
to look after the child's best interests provides a sound
and substantial basis for the court's finding that
unsupervised visitation would have "a negative impact on
the child's well-being" (Matter of Arelis Carmen
S. v Daniel H., 78 A.D.3d 504, 504 [1st Dept 2010],
lv denied 16 N.Y.3d 707');">16 N.Y.3d 707 ; Ronald S. v
Lucille Diamond S., 45 A.D.3d 295');">45 A.D.3d 295 [1st Dept 2007]).
Plaintiff also made repeated false allegations of abuse to
the Administration for Child Services and the police, which
rendered supervised visitation appropriate (Matter of
James Joseph M. v Rosano R., 32 A.D.3d 725');">32 A.D.3d 725 [1st Dept
2006], lv denied 7 N.Y.3d 717');">7 N.Y.3d 717 ).
court detailed its reasons for issuing a five-year order of
protection, and found that plaintiff committed numerous
family offenses, including assault in the third degree (Penal
Law § 120.00) and harassment in the second degree
(Penal Law § 240.26). A fair preponderance of the
evidence supports the determination (see generally Okpe v
Okpe, 136 A.D.3d 511');">136 A.D.3d 511 [1st Dept 2016]). The court was not
required to make a finding of "aggravating
circumstances" before issuing the order of protection
(compare Domestic Relations Law § 252
with Family Court Act § 842).
considered plaintiff's remaining challenges to the
court's rulings in connection with the custody trial and
find them unavailing. In any event, any claimed error would
not warrant a different custody determination.
determining the award of child support, the court properly
imputed income to plaintiff based on his income in 2014.
Although he presented no direct evidence of it, plaintiff
claims that he was terminated from his position at his law
firm because of the negative publicity he received after he
had been sanctioned during these proceedings in 2015
(Zappin v Comfort, 49 Misc.3d 1201');">49 Misc.3d 1201 [A], 2015 NY Slip
Op 51339[U] [Sup Ct, NY County 2015], affd 146
A.D.3d 575 [1st Dept 2017]). Even if he was terminated for
that reason, the sanctions - and therefore his unemployment -
resulted from his own misconduct at trial, not from the
court's conduct in sanctioning him or publicly releasing
the sanctions order (see Domestic Relations Law
§ 240[1-b][b][v]; Johnson v Chapin, 299
A.D.2d 294 [1st Dept 2002]). Moreover, plaintiff presented
only vague, conclusory testimony regarding his purportedly
unsuccessful attempts to find work since he lost that job.
court properly declined to modify child support to account
for plaintiff's cost in paying Comprehensive Family
Services to supervise his visits with the child.
Plaintiff's need for supervision stemmed from his own
previously described conduct, and there is no basis for a
conclusion that such an expense is extraordinary in this
context or that it renders his child support obligation
unjust or inappropriate (see Domestic Relations Law
setting a child support income cap of $250, 000, the court
cited the parties' incomes in the mid- to high $200, 000s
and their upper-middle class lifestyle, and thus properly
considered the parties' financial resources and the
child's standard of living had the marriage not dissolved
(Domestic Relations Law § 240[1-b][f]; Bast v
Rossoff, 91 N.Y.2d 723, 726-727 ).
court properly awarded child support arrears retroactive to
the date of defendant's application for child support in
Washington, D.C., where the parties previously had resided,
rather than when she later sought such relief before the New
York Supreme Court (Domestic Relations Law §
236[B][a]), based on plaintiff's valid waiver of any
objection to such an award. During proceedings before the
Superior Court of the District of Columbia, when the court
discussed the possibility of transferring the case to New
York, as the more convenient forum, and the impact on any
child support to which defendant was entitled in Washington
before the transfer, plaintiff personally agreed to waive
"any objection if this case proceeds in New York to an
award of child support beginning on the date that [defendant]
made the request in D.C." Contrary to plaintiff's