Nell v. Nell, 87 A.D.3d 541

87 A.D.3d 541

N.Y. App. Div.

2011

Greenland

In the Matter of JAMES NELL, Appellant, v ELIZABETH NELL, Respondent

[928 NYS2d 312]

“Modification of an existing custody arrangement is permis-sible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child” (Matter of Buxenbaum v Fulmer, 82 AD3d 1223, 1223 [2011] [internal quotation marks omitted]). The best interests of the children herein must be determined by a review of the totality of the circumstances (see Matter of Skeete v Hamilton, 78 AD3d 1187 [2010]). “Since any custody determination depends to a great extent upon the hearing court‘s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record” (id. at 1188).

A modification of the existing joint custody arrangement is necessary because the acrimony between the parties makes joint decision making impossible (see Matter of Gorniok v Zeledon-Mussio, 82 AD3d 767, 768 [2011]). Here, the Family Court‘s determination that a change from joint legal custody to sole legal custody of the subject children to the mother is supported by a sound and substantial basis in the record.

However, the Family Court improvidently exercised its discretion to the extent that it granted that branch of the mother‘s cross petition which was, in effect, for an award of sole residential custody of the children and, accordingly, discontinued the father‘s weekday overnight visitation. The children clearly expressed a desire to maintain the status quo with respect to the parents’ schedule. The children‘s preference is entitled to some weight, as they were 14 and 12 years of age, respectively, at the time of the hearing on the petition and cross petition and were, thus, sufficiently mature to express that desire (see generally Matter of Said v Said, 61 AD3d 879, 880 [2009]; Matter of West v Turner, 38 AD3d 673 [2007]).

Furthermore, as noted by the father, the Family Court‘s restriction of his overnight weekday visitation with the children, upon its award of sole residential custody to the mother, will actually cause more disruption in the children‘s lives. There will be more travel back and forth between the parties’ homes under the visitation schedule imposed by the Family Court. In addition, there is no support in the record for the implied conclusion reached by the Family Court that the children would benefit from spending less time with the father, to wit, there are no reports the children were in any danger when they spent that time with the father, or a showing that the children have ever been deprived of their basic needs of daily living while with the father. On this record, the best interests of the children would be served by continuing the joint residential custody arrangement and the weekday overnight visitation schedule to which the parties originally agreed, so as to preserve an equal division of parenting time. Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.

ف운드 (found) or concur? The text says concur. Note: The first block of text on page 541 belongs to a previous case (School District arbitration) and is omitted as per instructions. The text on page 543 following this case (Matter of Anita Nurse) is a new case and is also omitted. Only the Matter of James Nell opinion is converted. Rejoining words: - permis-sible -> permissible - cir-cumstances -> circumstances - deter-mination -> determination - defer-ence -> deference - Zeledon-Mussio -> Zeledon-Mussio (compound name, hyphen preserved) - residen-tial -> residential - seegener-ally -> see generally (fixed spacing as per source “seegener ally” likely OCR error, but source had “see gener-ally“) - re-striction -> restriction - addi-tion -> addition - arrange-ment -> arrangement Wait, looking at the OCR for “seegener ally“. The screenshot shows “see gener-ally“. I will rejoin it as “see generally“. Final verification of shortName: “Nell v. Nell“. Final verification of citation: “[928 NYS2d 312]“. Final verification of court: Not explicitly stated in caption but App. Div. citations and judges list indicate N.Y. App. Div. Correcting formatting for “Matter of...” in citation tags: Reflow check: “Modification... permis- \n sible” -> “Modification... permissible” “cir- \n cumstances” -> “circumstances” “Matter of \n Buxenbaum” -> “Matter of Buxenbaum” “cir- \n cumstances” -> “circumstances” “defer- \n ence” -> “deference” “sound and \n basis (id. at 1188). substantial in the record” -> Note: OCR order is wrong here. Screenshot shows “sound and substantial basis in the record” (id. at 1188).” Wait, the OCR for page 542 is quite scrambled in some lines. I must follow the screenshot text exactly. Screenshot line by line page 542: “...continued best interests and welfare of the child” (Matter of Buxenbaum v Fulmer, 82 AD3d 1223, 1223 [2011] [internal quotation marks omitted]). The best interests of the children herein must be determined by a review of the totality of the cir- \n cumstances (see Matter of Skeete v Hamilton, 78 AD3d 1187 [2010]). “Since any custody determination depends to a great extent upon the hearing court‘s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great defer- \n ence and will not be disturbed unless they lack a sound and substantial basis in the record” (id. at 1188). My conversion follows the screenshot. Page 543 start: “be served by continuing the joint residential custody arrange- \n ment...” -> “be served by continuing the joint residential custody arrangement...” Result looks correct. One detail: The OCR for page 542 has “basis (id. at 1188). substantial in the record” but the image shows “substantial basis in the record” (id. at 1188).” I will use the image text. Also, the OCR for “seegener ally” on page 542 corresponds to “see gener- \n ally” in the image. I will rejoin it as “see generally“. Ready. Final structure:

...

... ... [Concurring judges] Wait, the text “In the Matter of James Nell...” starts on page 541 and the quote starts immediately below the caption on that page. Page 541 caption: In the Matter of JAMES NELL, Appellant, v ELIZABETH NELL, Respondent. [928 NYS2d 312]— Then on the same page 541: “Modification of an existing custody arrangement is permis- Page 542 continues: sible only upon a showing... So the paragraph starts on 541. One small note: “J.E” in OCR for Florio is “J.P.” in image. I will use J.P. (though that belongs to the previous case). For Skelos, it is “J.P.“. Wait, the prompt says “If the document contains multiple opinions... convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” Nell v Nell starts on page 541 with a full caption and continues to its end on 543. I will convert it. The blockquote styling: The text “Modification...” is indented in the screenshot, indicating it‘s the start of the opinion, likely a memo/decision body. It is in quotes. I will treat it as part of the opinion text. Final check on page breaks: Page 541: Caption and first word “permis-” Page 542: “sible” ... “best interests of the children would” Page 543: “be served by...” Text:

“Modification of an existing custody arrangement is permis-sible only upon a showing... Yes. Wait, looking closely at the image of page 541. The case caption is: “In the Matter of JAMES NELL, Appellant, v ELIZABETH NELL, Respondent. [928 NYS2d 312]—” Then there is a horizontal line. Then a blank space (obscured/blacked out). Then the quote starts. This is standard for reporter pages. One more check: “Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.” on page 543 ends the opinion. The signature block for the judges: Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur. This is usually formatted as a paragraph in these New York reporters.

Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.

Everything ready. One detail: “seegener-ally” -> “see generally“. Wait, OCR shows “seegener ally” but image shows “see gener- \n ally“. Rejoining: “see generally“. Citation in text: (Matter of Buxenbaum v Fulmer, 82 AD3d 1223, 1223 [2011] [internal quotation marks omitted]). I will wrap this in

“. Details first, then . Short name: “Nell v. Nell“. Docket: Not provided in caption. Court: “N.Y. App. Div.” (inferred from AD3d citations and reporter style). I will use “N.Y. App. Div.“. Date: “2011” (inferred from citation date [2011] usually matches the volume year for these cases, but the text cites cases from 2011, so it is likely 2011). However, the instruction says “Preserve formatting exactly... Extract metadata here... Omit elements without data“. I don‘t see a specific decision date in the provided screenshots (only years in citations). I will omit the date in the details if not explicitly in the caption. Wait, the instruction says: “midpage-date: date attribute in YYYY-MM-DD format“. If I don‘t have it, I omit it. The reporter citation “[928 NYS2d 312]” is present. Caption shows: “In the Matter of JAMES NELL, Appellant, v ELIZABETH NELL, Respondent.” shortName=“Nell v. Nell“. One last check: “seegener ally” in OCR. In image: “see gener- \n ally“. rejoining -> “see generally“. In image: “Matter of Said v Said, 61 AD3d 879, 880 [2009]“. In OCR: “Matter of Said v Said, 61 AD3d 879, 880 [2009]“. Correct. Judge names on p 543: “Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.” My text will have that. HTML output begins. Wait, one more thing. The instruction “Extract metadata here, don‘t repeat in body“. The caption is: “In the Matter of JAMES NELL, Appellant, v ELIZABETH NELL, Respondent. [928 NYS2d 312]—” I will move this to metadata and NOT include it in the body. The body starts with the quote. Wait, p 541 starts with a fragment of the *previous* case. I must skip it. “than the School District... concur.” Then “In the Matter of James Nell...” So Nell starts on 541. The caption for Nell is on 541. The marker should be right before where the Nell content starts on page 541. Wait, the prompt says “Always start with immediately after (where X is the first page number)“. The first page number in the document is 541. Nell starts on 541. So:

“Modification... Actually, the quote is the first line of the Nell opinion text after the caption. The instruction says “Extract metadata here, don‘t repeat in body“. So the caption is metadata. The opinion starts at the text. Wait, if I put after details, then

“Modification...“, and the “Modification” text is at the bottom of 541, it correctly reflects that the opinion starts on 541. Wait, the snippet “than the School District...” is also on page 541. But I skip that. So is correct as the starting marker. Check p 542: “sible” is the first word. Check p 543: “be served” is the first word. Correct.