ROLLS v. ROLLS (1997)

Appeal from a judgment of the Supreme Court (Ellison, J.) ordering, inter alia, child support and fixing custody and visitation, entered June 7, 1996 in Chemung County, upon a decision of the court.

Plaintiff commenced this action for a divorce in November 1994.   Ultimately the matter came on for trial of the disputed issues of custody and visitation, and Supreme Court rendered a determination granting defendant custody of the parties' children, Corey, born in January 1988, and Sara, born in January 1990, with “open and liberal visitation” to plaintiff.   After the parties were unable to agree on a suitable visitation schedule, Supreme Court established plaintiff's visitation as follows:  two evenings each week, every other weekend, on school days when the children are off but only when defendant is working, one half of the children's summer vacation and other school breaks, on Christmas eve until 9:00 P.M. and on Christmas day from noon on, when plaintiff's portion of the Christmas vacation visitation period would commence.   Plaintiff now appeals, contending primarily that Supreme Court applied an erroneous legal standard in fixing custody and that the custody award is contrary to the weight of the evidence.   We disagree and accordingly affirm.

 Initially, we are not persuaded that, in making its determination with regard to custody, Supreme Court improperly applied the “exceptional circumstances” test in connection with the now-defunct “relocation rule” (see, Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145;  Matter of Clark v. Williams, 229 A.D.2d 686, 645 N.Y.S.2d 160).   We first note that, there having been no prior award of custody, this cannot properly be characterized as a relocation case (see, Matter of Tropea v. Tropea, supra, at 736, 642 N.Y.S.2d 575, 665 N.E.2d 145;  Matter of Griffen v. Evans, 235 A.D.2d 720, 652 N.Y.S.2d 380;  Matter of Messler v. Messler, 218 A.D.2d 157, 638 N.Y.S.2d 242).   That is not to say, however, that plaintiff's avowed intent to move the children to a community approximately one hour's driving time from their lifelong home in the City of Elmira, Chemung County, was irrelevant.   To the contrary, Supreme Court was entitled to and quite properly did consider that fact in connection with its “best interests” analysis (see, Matter of Tropea v. Tropea, supra, at 739-740, 642 N.Y.S.2d 575, 665 N.E.2d 145;  Matter of Morlando v. Morlando, 240 A.D.2d 852, 659 N.Y.S.2d 108;  Caganek v. Caganek, 233 A.D.2d 701, 650 N.Y.S.2d 365;  Matter of Clark v. Williams, supra ).

 We are also unpersuaded that Supreme Court's award of custody is against the weight of the evidence.   Plaintiff's central thesis, that Supreme Court's determination was based upon a misinterpretation of the evidence, is not borne out by the record.   The hearing testimony provided ample support for the conclusion that defendant played a significant (if not the primary) role in raising the children, a fact which, together with the continuity and stability afforded by permitting the children to remain in Elmira, was sufficient to tip the scales in favor of defendant (see, Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091;  Matter of Marino v. Marino, 240 A.D.2d 954, 659 N.Y.S.2d 335).   As noted by Supreme Court, the award of custody to defendant permitted the children to remain in their lifelong home, to continue at the same schools and to remain with their friends and supportive relatives.   We also note that, although by no means determinative, Supreme Court's determination that the children should remain living with defendant was in accord with the Law Guardian's recommendation (see, Matter of Betancourt v. Boughton, 204 A.D.2d 804, 807 n. 4, 611 N.Y.S.2d 941).   Viewing the totality of the circumstances and giving due deference to Supreme Court's factual findings, we conclude that the challenged custody determination has a sound and substantial basis in the record (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 173-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Hapeman v. Hapeman, 229 A.D.2d 807, 812, 646 N.Y.S.2d 583;  Matter of Daniel R. v. Noel R., 195 A.D.2d 704, 706, 600 N.Y.S.2d 314).

We have considered plaintiff's additional attack on the terms of Supreme Court's visitation and find it to be unpersuasive.

ORDERED that the judgment is affirmed, with costs.

MERCURE, Justice.

MIKOLL, J.P., and CREW, CASEY and YESAWICH, JJ., concur.