Submitted - November 7, 2019
Cohen Law Firm, P.C., Valley Stream, NY (Avinoam Cohen of
counsel), for appellant.
Sunshine, Isaacson & Hecht, LLP, Jericho, NY (Jason
Isaacson of counsel), for respondent.
Maureen McLoughlin, Garden City, NY, attorney for the child.
M. LEVENTHAL, J.P. SHERI S. ROMAN, JEFFREY A. COHEN, VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
matrimonial action in which the parties were divorced by a
judgment entered August 18, 2009, the defendant appeals from
an order of the Supreme Court, Nassau County (Hope Schwartz
Zimmerman, J.), dated August 20, 2018. The order, insofar as
appealed from, after a hearing, inter alia, granted that
branch of the plaintiff's motion which was to modify a
so-ordered stipulation of custody entered June 16, 2008,
which was incorporated but not merged into the parties'
judgment of divorce, so as to award him sole custody of the
parties' child to the extent of awarding him residential
custody of the child, and directed the defendant to pay
temporary child support in the sum of $50 per week.
that the order is affirmed insofar as appealed from, with
parties are the divorced parents of one child, born in 2004.
In a so-ordered stipulation of custody, which was
incorporated but not merged into the parties' judgment of
divorce entered August 18, 2009, they agreed to share joint
custody of the child, with primary residential custody to the
defendant. In January 2018, the plaintiff moved, inter alia,
to modify the so-ordered stipulation of custody so as to
award him sole custody of the child. After a hearing, in an
order dated August 20, 2018, the Supreme Court granted that
branch of the plaintiff's motion to the extent of
awarding him residential custody of the child. The court
also, among other things, directed the defendant to pay
temporary child support in the sum of $50 per week until a
final order of child support could be entered, following
financial discovery. The defendant appeals.
seeking modification of an existing custody or parental
access arrangement must show that there has been a subsequent
change of circumstances such that modification is required
(see Matter of Wilson v McGlinchey, 2 N.Y.3d 375,
380; Cohen v Cohen, 172 A.D.3d 998, 999).
"Extraordinary circumstances are not a prerequisite to
obtaining a modification; rather, the 'standard
ultimately to be applied remains the best interests of the
child when all of the applicable factors are
considered'" (Matter of Wilson v
McGlinchey, 2 N.Y.3d at 381, quoting Friederwitzer v
Friederwitzer, 55 N.Y.2d 89, 95; see Cook v
Cook, 142 A.D.3d 530, 533; Cuccurullo v
Cuccurullo, 21 A.D.3d 983, 984). Since any determination
related to custody depends upon the hearing court's
assessment of the credibility of the witnesses and of the
character, temperament, and sincerity of the parties, its
findings are generally accorded great respect and will not be
disturbed unless they lack a sound and substantial basis in
the record (see Eschbach v Eschbach, 56 N.Y.2d 167,
173; Hogan v Hogan, 159 A.D.3d 679, 681;
Cunningham v Brutman, 150 A.D.3d 815). Contrary to
the defendant's contention, the Supreme Court's
determinations that there had been a change in circumstances,
and that a transfer of residential custody to the plaintiff
would be in the child's best interests, have a sound and
substantial basis in the record and, thus, will not be
defendant's contention that the Supreme Court was biased
against her is unpreserved for appellate review. A party
claiming court bias must preserve an objection and move for
the court to recuse itself (see Matter of Baby Girl
Z. [Yaroslava Z.], 140 A.D.3d 893, 894;
Matter of Bowe v Bowe, 124 A.D.3d 645, 646). In any
event, the record shows that the court treated the parties
fairly and did not have a predetermined outcome of the case
in mind during the hearing (see Matter of Bowe v
Bowe, 124 A.D.3d at 646; Matter of Davis v
Pignataro, 97 A.D.3d 677, 678).
the circumstances of this case, the Supreme Court did not
improvidently exercise its discretion in declining to direct
an independent forensic evaluation, as the court possessed
sufficient information to render an informed decision
regarding custody consistent with the child's best
interests (see Matter of Jones v Nohar, 108 A.D.3d
631, 632; Matter of Solovay v Solovay, 94 A.D.3d
898, 900; Matter of Rhodie v Nathan, 67 A.D.3d 687).
of pendente lite awards should rarely be made by an appellate
court and then only under exigent circumstances, such as
where a party is unable to meet his or her financial
obligations, or justice otherwise requires"
(Rosenstock v Rosenstock, 149 A.D.3d 887, 888;
see Vistocco v Jardine, 116 A.D.3d 842, 843). Here,
the Supreme Court did not improvidently exercise its
discretion in directing the defendant to pay temporary child
support in the sum of $50 per week. Any perceived inequity in
the award of temporary child support can best be remedied by
a speedy trial, at which the parties' financial