Bruzzese v. BruzzeseBruzzese v. Bruzzese
Ordered that the money judgment and the orders are affirmed; and it is further,
Ordered that the matter is remitted to the Supreme Court, Orange County, for a hearing on the issue of custody of the parties’ minor children and a new custody determination thereafter in accordance herewith; and it is further,
Ordered that pending the new custody determination, the child Lauren shall remain in the custody of the defendant, and the child Johnny shall remain in the custody of the plaintiff; and it is further,
Ordered that one bill of costs is awarded to the defendant and nonparty Peter D. Barlet, payable by the plaintiff.
In 2011, the plaintiff commenced this action for a divorce and ancillary relief, and the defendant counterclaimed for a divorce. Prior to trial, the parties stipulated to a divorce on the ground of an irretrievable breakdown of the marital relationship pursuant to
We reject the contention of nonparty Peter D. Barlet that the appeal from the money judgment dated March 20, 2015, must be dismissed as untimely taken. Initially, we note that Barlet did not move to dismiss the appeal on this ground. In any event, the record does not establish that the money judgment was ever served upon the plaintiff with “written notice of its entry,” and thus, Barlet failed to meet his burden of establish
Nonetheless, in light of, inter alia, the disparity in income between the parties and the plaintiff‘s conduct that delayed the proceedings, the Supreme Court properly directed the plaintiff to pay attorney‘s fees to Barlet, the defendant‘s former attorney (see
We agree with the plaintiff‘s contention that the Supreme Court erred in awarding the defendant a divorce on the ground of cruel and inhuman treatment. “Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce” (Matter of New York, Lackawanna & W. R.R. Co., 98 NY 447, 453 [1885]). “[S]tipulations of settlement are judicially favored and are not lightly cast aside absent cause sufficient to invalidate a contract” (Lewis v Lewis, 183 AD2d 875, 877 [1992]). Here, there was no showing of cause sufficient to invalidate the parties’ stipulation to a divorce on the ground of an irretrievable breakdown of the marital relationship. Accordingly, the court should have awarded the defendant a divorce on this ground.
We also agree with the plaintiff‘s contention that the Supreme Court erred in calculating his share of the childrens’ future unreimbursed health care expenses.
“The trial court is vested with broad discretion in making an equitable distribution of marital property and unless it can be shown that the court improvidently exercised that discretion,
“The decision to award an attorney‘s fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court” (Black v Black, 140 AD3d 816, 816 [2016] [internal quotation marks omitted]; see O‘Brien v O‘Brien, 66 NY2d 576 [1985]). “An award of an attorney‘s fee should be based upon, inter alia, the relative financial circumstances of the parties, the relative merits of their positions, and the tactics of a party in unnecessarily prolonging the litigation” (Schek v Schek, 49 AD3d 625, 626 [2008]). Here, considering the disparity in the parties’ income and the other circumstances of the case, the Supreme Court providently exercised its discretion in awarding the defendant attorney‘s fees of $40,004.50 and $44,033.20 (see
In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167 [1982]), which requires an evaluation of the “totality of [the] circumstances” (Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]). Here, the Supreme Court, after the trial, awarded custody of the parties’ minor children to the defendant. However, on appeal, new developments have been brought to this Court‘s attention by the attorneys for the minor children, including that, after the judgment of divorce was entered, the child Johnny moved into the home of the plaintiff and ceased communicating with the defendant. As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to
Since we are remitting for a hearing on the issue of custody, we note that the Supreme Court, relying on the physician-patient privilege, improperly precluded testimony of two witnesses, Drs. Janet Wilkie and Arthur Riesel, regarding the defendant‘s mental health. “[I]n a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition ... by actively contesting custody . . . However, [t]here first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material” (McDonald v McDonald, 196 AD2d 7, 13 [1994] [citations and internal quotation marks omitted]; see Baecher v Baecher, 58 AD2d 821 [1977]). Here, since the defendant actively contested custody, and the plaintiff made the requisite showing that resolution of the custody issue required revelation of the protected material, the court should not have precluded the testimony of Drs. Wilkie and Riesel regarding the defendant‘s mental health.
The plaintiff‘s remaining contentions regarding the Supreme Court‘s evidentiary rulings are without merit. Eng, P.J., Leventhal, Sgroi and Maltese, JJ., concur.