IN RE: HOWARD G. MESSIMORE

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

IN RE: HOWARD G. MESSIMORE, PETITIONER–APPELLANT, v. STACY M. MESSIMORE, RESPONDENT–RESPONDENT.

CAF 10–01945

Decided: November 18, 2011

PRESENT:  SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ. CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (KRYSTAL A. RUPERT OF COUNSEL), FOR PETITIONER–APPELLANT. TYSON BLUE, CANANDAIGUA, FOR RESPONDENT–RESPONDENT.

MEMORANDUM AND ORDER

SUSAN A. SOVIE, ATTORNEY FOR THE CHILD, WATERTOWN, FOR NATALEIGH M.M.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Petitioner father commenced this proceeding seeking to modify the existing custody provisions in the judgment of divorce, which was entered while he was deployed overseas with the United States Army, by awarding him primary physical custody of the parties' child.   We agree with the father that his return from deployment constituted a change in circumstances warranting review of the existing custody arrangement (see Family Ct Act § 651[f][3] ).   Contrary to the father's contention, however, we conclude that Family Court did undertake such a review in light of the change in circumstances.   The court held an evidentiary hearing, during which witnesses were called by both parties, conducted an in camera interview with the parties' child and thereafter made a determination based upon the best interests of the child (cf.  Matter of Hughes v. Davis, 68 AD3d 1674).   Contrary to the further contention of the father, we conclude that the court's determination that the best interests of the child are served by continuing primary physical custody with respondent mother is supported by a sound and substantial basis in the record (see Matter of McLeod v. McLeod, 59 AD3d 1011).

Patricia L. Morgan

Clerk of the Court