ALBERT v. ALBERT (2009)

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (Balkin, J.), dated August 22, 2006, which, upon an order of the same court dated May 10, 2005, and a decision of the same court dated May 8, 2006, made after a nonjury trial, inter alia, awarded the plaintiff custody of the parties' two children, awarded the plaintiff the sum of $4,375 as his equitable share of the defendant's business conducted under the name “Dramatic Changes Hair Design Salon,” and awarded the plaintiff an attorney's fee in the sum of $181,158 in connection with an interim custody hearing.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff the sum of $4,375 as his equitable share of the defendant's business conducted under the name “Dramatic Changes Hair Design Salon;” as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff.

 The Supreme Court properly awarded the plaintiff sole custody of the parties' two children.   In making a custody determination, the paramount consideration is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765).   Since the Supreme Court's determination is largely dependent upon an assessment of the credibility of witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record (see Allain v. Allain, 35 A.D.3d 513, 513-514, 826 N.Y.S.2d 411).   Here, the Supreme Court's determination to award the plaintiff sole custody of the children has a sound and substantial basis in the record, and we see no basis to disturb it.

 In addition, contrary to the defendant's contention, the court providently exercised its discretion in awarding the sum of $181,158 to the plaintiff to reimburse him for attorney's fees he incurred in connection with an interim hearing on the issue of custody (see Domestic Relations Law § 237[a];  DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168;  McCully v. McCully, 306 A.D.2d 329, 329, 760 N.Y.S.2d 686;   Brancoveanu v. Brancoveanu, 177 A.D.2d 614, 576 N.Y.S.2d 321).

 However, as conceded by the plaintiff, the court erred in awarding him a portion of the value of the defendant's hairstyling business, as it was sold prior to the parties' marriage and was not marital property.

The defendant's remaining contentions are without merit.