ST CLEMENT CASALE v. CASALE

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

Courtney ST. CLEMENT, on behalf of Taylor Ernest CASALE, Petitioner-Appellant, v. Gerald CASALE, et al., Respondents-Respondents.

Decided: May 11, 2006

FRIEDMAN, J.P., SULLIVAN, NARDELLI, WILLIAMS, SWEENY, JJ. Fox Horan & Camerini LLP, New York (John R. Horan of counsel), for appellant. Gerald Casale, respondent pro se. Goldberg & Carlton, New York (Robert H. Goldberg of counsel), for Ernest Londa, respondent.

Orders, Supreme Court, New York County (Joan B. Lobis, J.), entered April 12, 2002, September 23, 2002, on or about April 29, 2004, August 26, 2004 and November 19, 2004, which, respectively, inter alia, denied petitioner mother's application for temporary custody of the subject child, confirmed a Special Referee's report, denied her request to have the child evaluated by the Bellevue Hospital Child Protection Unit, denied her motion to renew, and denied her motion to subpoena the child's pediatrician;  and order and judgment (one paper), same court and Justice, entered September 21, 2004, which, inter alia, awarded child support to respondent father Gerald Casale in the amount of $567 monthly, retroactive to April 16, 2001, the date of the judgment awarding the father custody, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a hearing before Supreme Court in order to reevaluate the best interests of the child, as well as the issues of child support.   Family Court, during the pendency of this appeal, and in response to a petition filed by the Administration for Children's Services naming petitioner and respondents herein as respondents in that proceeding, has appointed a law guardian to represent the interests of the child.   That law guardian is directed to continue to represent the child for the purposes of the Supreme Court proceeding directed herein.

 It is settled that the essential consideration in making an award of custody is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982];  Matter of Faunteleroy v. Mercado, 5 A.D.3d 482, 482-483, 772 N.Y.S.2d 562 [2004] ), and a court may direct a change in custody if the totality of the circumstances warrants a modification and such a change is in the best interests of the child (Matter of Mathis v. Parkhurst, 23 A.D.3d 923, 924, 805 N.Y.S.2d 155 [2005];  Matter of Dow v. Dow, 306 A.D.2d 529, 530, 761 N.Y.S.2d 682 [2003] ).   Some of the factors to be considered include “the quality of the home environment, parental guidance, financial status and ability to provide for the child as well as the ability to provide for the emotional and intellectual development of the child” (Matter of Luz Maria V., 23 A.D.3d 192, 193, 803 N.Y.S.2d 544 [2005], lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477 [2006], citing Eschbach, 56 N.Y.2d at 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   Moreover, the burden of establishing a change in circumstances requiring a modification of an existing custody order rests with the petitioner (Matter of Martin R.G. v. Ofelia G.O., 24 A.D.3d 305, 305-306, 809 N.Y.S.2d 1 [2005];  Matter of Millan v. Vargas, 5 A.D.3d 602, 772 N.Y.S.2d 849 [2004] ).

 In this matter, we find troubling respondents' refusal, in the face of petitioner's allegations of abuse and sexual misconduct, to address the issue of the Web site postings in question, for if respondent Londa did, in fact, post these messages, a change in custody may very well be warranted.   In addition, given the somewhat contradictory positions espoused by Dr. Prezioso, the child's pediatrician, both in support of, and in opposition to, petitioner's order to show cause, we find clarification of her observations necessary in order to make an informed determination regarding the child's best interests.   Finally, we remand the issue of child support to Supreme Court, for as Supreme Court acknowledged in its decision, its ability to review the referee's conclusions was circumscribed by the parties' failure to submit a transcript of the hearing, in violation of CPLR 4320.