NUNNERY v. NUNNERY

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Kent A. NUNNERY, Petitioner-Respondent-Respondent, v. Tammy L. NUNNERY, Respondent-Petitioner-Appellant.

Decided: September 29, 2000

PRESENT:  GREEN, J. P., PINE, WISNER, KEHOE and BALIO, JJ. Judy L. Johnson, Lockport, for respondent-petitioner-appellant. John S. Sansone, for petitioner-respondent-respondent. Charles Plovanich, Rochester, Law Guardian.

The parties were married in October 1994, their child was born in December 1994, and respondent mother left the marital residence in October 1998.   Shortly thereafter, petitioner father filed a petition for custody of the child and respondent filed a cross petition for custody and a family offense petition.   After a hearing, Family Court awarded custody of the child to petitioner with liberal visitation rights to respondent and dismissed both the cross petition for custody and the family offense petition.

 Respondent failed to preserve for our review her contention that the court erred in failing to recuse itself (see, Schauer v. Gent, 115 A.D.2d 126, 495 N.Y.S.2d 664).   In any event, that contention lacks merit.  “ ‘Where, as here, there is no allegation that recusal is statutorily required (see, Judiciary Law § 14), the matter of recusal is addressed to the discretion and personal conscience of the justice whose recusal is sought’ ” (Kern v. City of Rochester, 217 A.D.2d 918, 631 N.Y.S.2d 259, quoting Matter of Card v. Siragusa, 214 A.D.2d 1022, 1023, 626 N.Y.S.2d 336).

 We further reject respondent's contention that the court erred in failing to order psychological evaluations of the parties.  “The decision whether to direct a psychological or social evaluation in a child custody dispute is within the sound discretion of the court (see, Kesseler v. Kesseler, 10 N.Y.2d 445, 452 [225 N.Y.S.2d 1, 180 N.E.2d 402];  Family Ct. Act § 251)” (Matter of Paul C. v. Tracy C., 209 A.D.2d 955, 622 N.Y.S.2d 159).   Here, neither party requested the psychological evaluations, and there was sufficient testimony from the parties and other witnesses to enable the court to resolve the issue without those evaluations (see, DeWaal v. DeWaal, 249 A.D.2d 1003, 1004, 671 N.Y.S.2d 367;  cf., Giraldo v. Giraldo, 85 A.D.2d 164, 171-172, 447 N.Y.S.2d 466, appeal dismissed 56 N.Y.2d 804).

 Finally, we reject the contention of respondent that the award of custody to petitioner is against the weight of the evidence.  “The determination of the hearing court, which is 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., supra, at 956, 622 N.Y.S.2d 159;  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).   The court carefully weighed the appropriate factors in determining that awarding custody to petitioner was in the child's best interests (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 172-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863).   Contrary to respondent's contention, the court's erroneous statement that respondent returned to New York because of this custody proceeding is not a basis to disturb the court's determination.   Although respondent in fact returned for a court proceeding involving a different child, the essence of the court's finding is that respondent did not return to New York because of a desire to salvage the marriage.

Order unanimously affirmed without costs.

MEMORANDUM: