Pedreira v. Pedreira

Apr 19, 2005
Versions:17 A.D.3d 213
793 N.Y.S.2d 373
2005 N.Y. App. Div. LEXIS 4060

Judgment of divorce, Supreme Court, New York County (John E.H. Stackhouse, J.), entered December 10, 2003, inter alia, distributing the marital property and awarding custody of the parties’ child to defendant father, unanimously affirmed, without costs.

The trial court‘s finding that awarding custody of the parties’ daughter to defendant father would be in the child‘s best interests was amply supported by the evidence, including the testimony of the neutral, court-appointed forensic psychologist (see Matter of Felipe B. v Yolanda B., 304 AD2d 324 [2003]; cf. Matter of Martin V. v Karen Beth G., 305 AD2d 305, 306 [2003]), corroborated by the trial court‘s observations of the parties’ testimony and the evidence of the mother‘s interference with the father‘s visitation. The record clearly demonstrates that defendant is the more skilled and nurturing parent and that plaintiff‘s relationship with the child has been problematic. We note in this connection that the trial court‘s custodial determination is to be accorded great respect since that court is uniquely situated to assess the credibility and character of witnesses based on their demeanor while testifying (see Matter of Louise E. S. v W. Stephen S., 64 NY2d 946, 947 [1985]; Eschbach v Eschbach, 56 NY2d 167, 173 [1982]).

Although plaintiff contends that certain property should have been treated as separate and shielded from equitable distribution, she did not carry her burden (see DeJesus v DeJesus, 90 NY2d 643, 648 [1997]; Kurtz v Kurtz, 1 AD3d 214 [2003]) to demonstrate that the property at issue was in fact separate.

The trial court correctly imposed certain conditions on plaintiff‘s participation in the sale of the marital residence, in particular upon plaintiff‘s ability to bid at the sale, given her dilatory conduct throughout the prior proceedings.

We have considered plaintiff‘s remaining points and find them unavailing. Concur—Mazzarelli, J.P., Marlow, Ellerin, Gonzalez and Catterson, JJ.