Opinion
131 CA 15-00703.
02-11-2016
John S. GIZZI, Plaintiff–Appellant, v. 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.
Joan de R. O'Byrne, Rochester (Michael Steinberg of counsel), for Plaintiff–Appellant.
Gary Muldoon, Attorney for the Children, Rochester.
Opinion
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 A.D.3d 1740, 1740–1741, 957 N.Y.S.2d 787). 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 A.D.3d 1409, 1409, 908 N.Y.S.2d 784). 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 A.D.2d 113, 117, 558 N.Y.S.2d 596; see Matter of Dingeldey v. Dingeldey, 93 A.D.3d 1325, 1326, 940 N.Y.S.2d 760). 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 A.D.3d 1448, 1450, 902 N.Y.S.2d 697, lv. denied 15 N.Y.3d 711, 2010 WL 4116959). Finally, the record does not support the father's contention that the court was biased in favor of the mother (see id. at 1449, 902 N.Y.S.2d 697).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.