WIDEMAN v. WIDEMAN (2007)

 Supreme Court granted plaintiff a divorce and, by the order on appeal, the court decided the remaining issues in the divorce action. Contrary to the contention of plaintiff, the court did not err in refusing to award her primary physical custody of the parties' children.   Both parties sought primary physical custody, and the court's determination that joint physical custody is in the children's best interests “ ‘is supported by a sound and substantial basis in the record’ and thus will not be disturbed” (Matter of Amy L.W. v. Brendan K.H., 37 A.D.3d 1060, 830 N.Y.S.2d 408;  see Matter of Westfall v. Westfall, 28 A.D.3d 1229, 1230, 813 N.Y.S.2d 623, lv. denied 7 N.Y.3d 706, 819 N.Y.S.2d 873, 853 N.E.2d 244;  Sorce v. Sorce, 16 A.D.3d 1077, 793 N.Y.S.2d 304).   Also contrary to plaintiff's contention, the record establishes that the court carefully weighed the appropriate factors, and the determination of the court, “which [was] in the best position to evaluate the character and credibility of the witnesses, must be accorded great weight” (Matter of Paul C. v. Tracy C., 209 A.D.2d 955, 956, 622 N.Y.S.2d 159;  see Matter of Pinkerton v. Pensyl, 305 A.D.2d 1113, 1113-1114, 757 N.Y.S.2d 921;  see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260).

 Plaintiff further contends that the court abused its discretion in refusing to award her sole legal custody of the children, i.e., the sole decision-making authority with respect to them, and that the court abused its discretion by instead setting forth the separate areas of sole decision-making authority in the children's lives.   In particular, the court granted plaintiff decision-making authority with respect to religion, finances, counseling/therapy, and summer activities, and the court granted defendant decision-making authority with respect to education, medical/dental care, and extracurricular activities.   As the court noted, joint legal custody was not a realistic possibility in this case, given the parties' past acrimony and the predictions of the experts and plaintiff herself that the parties would be unable to agree on major decisions concerning their children (see Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349;  Matter of Brown v. Marr, 23 A.D.3d 1029, 1030, 804 N.Y.S.2d 181).   The court thus did not err in determining that it was appropriate to divide the decision-making authority with respect to the children (see Matter of Ring v. Ring, 15 A.D.3d 406, 790 N.Y.S.2d 51).

We further reject plaintiff's contention that the court erred in applying the Child Support Standards Act (CSSA) percentage to all of the combined parental income, which was approximately $130,000.   The record establishes that the court articulated a proper basis for applying the CSSA to the combined parental income in excess of $80,000 (see Domestic Relations Law § 240[1-b][c][2], [3];  Terrell v. Terrell, 299 A.D.2d 810, 812, 749 N.Y.S.2d 345;  Corasanti v. Corasanti, 296 A.D.2d 831, 744 N.Y.S.2d 614).

We have considered the contentions raised by defendant on his cross appeal and conclude that they are lacking in merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: