Austin v. Austin , 617 N.Y.S.2d 645 ( 1994 )

—Judgment of the Supreme Court, New York County (Walter Schackman, J.), entered January 22, 1992, which, inter alia, awarded plaintiff custody of the parties’ infant son, unanimously modified, on the law and facts, solely to grant both parents joint custody, and otherwise affirmed, without costs or disbursements.

The plaintiff asserts that the judgment varies greatly from the decision after the trial, entered May 14, 1991, and must, therefore, be modified to conform with the decision (see, Di Prospero v Ford Motor Co., 105 AD2d 479, 480). While that decision does vary from the judgment in certain respects, most significantly in the provision for visitation, a subsequent decision of the court, dated August 26, 1991, deciding a motion by defendant, pursuant to CPLR 4404 (b), specifically notes, inter alia, that the court "will meet with the child Eric at a time to be arranged with counsel and will confer with the parties and counsel prior to amending the visitation schedule previously promulgated” (emphasis added). Therefore, the court’s previously issued decisions were consistent with the judgment thereafter settled.

In addition, the record supports the actions taken by the nisi prius court, with the exception of its award of custody to the plaintiff giving him the sole decision-making power as to the child’s health and welfare, and we modify, accordingly, solely to grant the parties joint custody. Concur—Ellerin, J. P., Wallach, Kupferman and Asch, JJ.