Fortune Mizrachi, respondent, v. Danny Mizrachi, appellant.

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

Fortune Mizrachi, respondent, v. Danny Mizrachi, appellant.

2009–11209 2009–11613 (Index No. 33714/05)

Decided: March 29, 2011

WILLIAM F. MASTRO, J.P. PETER B. SKELOS RUTH C. BALKIN SHERI S. ROMAN, JJ. Andrew Citron, New York, N.Y., for appellant. Harvey S. Jacobs, Brooklyn, N.Y., for respondent.

Argued—March 4, 2011

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Kings County (Prus, J.), dated September 11, 2009, as, upon a decision of the same court dated July 9, 2009, made after a nonjury trial, equitably distributed the marital residence to the plaintiff, awarded custody of the parties' children to the plaintiff, directed him to pay child support in the amount of $157 per week commencing with entry of judgment and to continue to pay the amount of child support directed in a pendente lite order of the same court dated June 16, 2006, until entry of judgment, and (2) from an order of the same court dated November 10, 2009, which granted the plaintiff's motion to confirm the report of a Judicial Hearing Officer (Harkavy, J.H.O.), dated October 23, 2009, made after a hearing, finding that he willfully violated the order dated June 16, 2006, and held him in civil contempt.

ORDERED that on the Court's own motion, the notice of appeal from the order dated September 11, 2009, is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order dated September 11, 2009, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated November 10, 2009, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The Supreme Court did not improvidently exercise its discretion in distributing the marital residence to the plaintiff (see Domestic Relations Law § 236[B][5][d], [h];  Pinto v. Pinto, 260 A.D.2d 622;  Schwartz v. Schwartz, 235 A.D.2d 468, 469).

An award of custody is based primarily on the best interests of the children (see Domestic Relations Law § 70;  Salvatore v. Salvatore, 68 AD3d 966, 966).   Here, the Supreme Court did not improvidently exercise its discretion, based on its assessment of the parties' credibility, character, and temperament, in concluding that the award of custody of the children to the plaintiff was in the best interests of the children (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89;  Salvatore v. Salvatore, 68 AD3d 966;  Bourne v. Bristow, 66 AD3d 621, 622).   Inasmuch as the Supreme Court's determination has a sound and substantial basis in the record, we decline to disturb it (see Salvatore v. Salvatore, 68 AD3d at 966–967).

After the plaintiff met her prima facie burden of establishing that the defendant failed to pay child support as ordered, the defendant failed to offer credible evidence of his inability to pay.   Accordingly, he was properly held in civil contempt for his willful violation of the order of support (see Matter of Maldonado v. Maldonado, 74 AD3d 971, 971–972;  Matter of Greene–Tyus v. Tyus, 61 AD3d 758;  Matter of Fraser v. Green, 57 AD3d 896).

The defendant's remaining contention is not properly before this Court.

MASTRO, J.P., SKELOS, BALKIN and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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