GIZZI, JOHN S. v. GIZZI, TINA M. , 24 N.Y.S.3d 839 ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
131
CA 15-00703
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
JOHN S. GIZZI, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
TINA M. GIZZI, DEFENDANT-RESPONDENT.
JOAN de R. O’BYRNE, ROCHESTER (MICHAEL STEINBERG OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
GARY MULDOON, ATTORNEY FOR THE CHILDREN, ROCHESTER.
Appeal from an order of the Supreme Court, Monroe County (Kenneth
R. Fisher, J.), entered July 24, 2014. The order, among other things,
denied plaintiff’s post-divorce application to modify the parties’
agreement concerning custody and visitation.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff father appeals from an order that denied
his post-divorce application seeking, inter alia, modification of the
parties’ agreement concerning custody of their three children.
Contrary to the father’s contention, there is a sound and substantial
basis in the record for Supreme Court’s determination that he failed
to make the requisite evidentiary showing of a change in circumstances
to warrant an inquiry into whether the children’s best interests
warranted modification of the existing custody arrangement (see Matter
of Avola v Horning, 101 AD3d 1740, 1740-1741). In any event, the
record also supports the court’s further determination that
continuation of the existing custody arrangement would serve the best
interests of the children (see Matter of Slade v Hosack, 77 AD3d 1409,
1409). Each of the children expressed a preference to maintain the
existing arrangement and, “[w]hile the express wishes of the children
are not controlling, they are entitled to great weight, particularly
where their age and maturity would make their input particularly
meaningful” (Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117; see
Matter of Dingeldey v Dingeldey, 93 AD3d 1325, 1326). In addition,
the record supports the court’s determination that defendant mother
had taken steps to address the children’s school attendance problems
and, “contrary to the father’s allegations, there is no evidence that
the mother’s . . . financial difficulties ha[ve] placed the children
in jeopardy” (Matter of Bush v Bush, 74 AD3d 1448, 1450, lv denied 15
NY3d 711). Finally, the record does not support the father’s
contention that the court was biased in favor of the mother (see id.
-2- 131
CA 15-00703
at 1449).
Entered: February 11, 2016 Frances E. Cafarell
Clerk of the Court