SALVATORE v. SALVATORE (2009)

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (MacKenzie, J.), entered December 11, 2008, as, upon an order of the same court dated August 15, 2007, made after a hearing, awarding custody of the parties' two children to the plaintiff, and an order of the same court dated May 20, 2008, denying his motion to modify the order dated August 15, 2007, so as to award him custody, awarded custody of the parties' two children to the plaintiff.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

“When determining custody cases, the primary concern is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260) ․ In determining the custody arrangement that is in the child's best interests, the court must consider multiple factors. These include ‘the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent’ [citations omitted]”(Matter of Edwards v. Rothschild, 60 A.D.3d 675, 676-677, 875 N.Y.S.2d 155).

“Since a custody determination necessarily depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings [citation omitted]. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record [citations omitted]”(Matter of Berkham v. Vessia, 63 A.D.3d 1155, 1156, 882 N.Y.S.2d 449; see Torelli v. Torelli, 62 A.D.3d 691, 692, 877 N.Y.S.2d 699; Matter of Edwards v. Rothschild, 60 A.D.3d at 677, 875 N.Y.S.2d 155; Matter of Jara v. Rivera, 60 A.D.3d 680, 876 N.Y.S.2d 66).

The Supreme Court's determination to award custody of the parties' son and daughter to the mother has a sound and substantial basis in the record, and will not be disturbed. While the Supreme Court erred in its factual finding that the father had relinquished custody of one of his daughters from his first marriage, given the total circumstances of this case, that error does not diminish the bases for the award of custody to the mother.

The father is not entitled to any relief based on his claim that he received ineffective assistance of counsel. In the context of civil litigation, a claim of ineffective assistance will not be entertained, absent extraordinary circumstances (see Galil, LLC v. Scott, 61 A.D.3d 820, 876 N.Y.S.2d 892; Mendoza v. Plaza Homes, LLC, 55 A.D.3d 692, 693, 865 N.Y.S.2d 342; Matter of Robinson, 44 A.D.3d 961, 843 N.Y.S.2d 519; Matter of Cichosz v. Cichosz, 12 A.D.3d 598, 599, 784 N.Y.S.2d 387; Matter of Ketcham v. Crawford, 1 A.D.3d 359, 361, 767 N.Y.S.2d 47; Matter of Eirich v. Costello, 309 A.D.2d 934; Matter of Saren v. Palma, 263 A.D.2d 544, 545, 693 N.Y.S.2d 207). No such extraordinary circumstances are present on this record.

Furthermore, the Supreme Court properly denied the father's motion to modify the award of custody to the mother. “ ‘Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child’ (Matter of Pignataro v. Davis, 8 A.D.3d 487, 488, 778 N.Y.S.2d 528)” (Matter of Watson v. Smith, 52 A.D.3d 615, 616, 861 N.Y.S.2d 354; see Matter of Adornato v. Adornato, 63 A.D.3d 920, 880 N.Y.S.2d 535; Matter of Myers v. Sheehan, 62 A.D.3d 802, 803, 880 N.Y.S.2d 96; Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 629, 872 N.Y.S.2d 141; Foley v. Foley, 52 A.D.3d 773, 774, 861 N.Y.S.2d 386).

“A noncustodial parent seeking a change of custody is not entitled to a hearing without making some evidentiary showing sufficient to warrant a hearing [citations omitted]”(Matter of Lopez v. Infante, 55 A.D.3d 837, 838, 866 N.Y.S.2d 295; see Matter of Olds v. Binyard, 64 A.D.3d 658, 659, 882 N.Y.S.2d 495; Jean v. Jean, 59 A.D.3d 599, 875 N.Y.S.2d 88; Matter of Bauman v. Abbate, 48 A.D.3d 679, 680, 850 N.Y.S.2d 921; Spratt v. Fontana, 46 A.D.3d 670, 671, 847 N.Y.S.2d 220; Green v. Green, 43 A.D.3d 867, 841 N.Y.S.2d 667). The father failed to make the requisite showing to warrant a hearing. His conclusory and nonspecific allegations, unsupported by any evidentiary showing, were insufficient to warrant a hearing (see Matter of Blackstock v. Price, 51 A.D.3d 914, 915, 858 N.Y.S.2d 733; Arcabascio v. Arcabascio, 48 A.D.3d 606, 607, 852 N.Y.S.2d 352).

The father's remaining contentions are without merit.