Gillisv.Gillis

Supreme Court, Appellate Division, Second Department, New York.Jan 29, 2014
979 N.Y.S.2d 387 (N.Y. App. Div. 2014)

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2014-01-29

Justine GILLIS, appellant, v. Mark GILLIS, respondent.

Coffinas & Lusthaus, P.C., Brooklyn, N.Y. (Meredith A. Lusthaus of counsel), for appellant. Corey M. Shapiro, New York, N.Y., for respondent.



Coffinas & Lusthaus, P.C., Brooklyn, N.Y. (Meredith A. Lusthaus of counsel), for appellant. Corey M. Shapiro, New York, N.Y., for respondent.
Daniel P. Moskowitz, Jamaica, N.Y., attorney for the children.



WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SYLVIA O. HINDS–RADIX, JJ.

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Queens County (Greco, Jr., J.), entered November 30, 2012, as, after a nonjury trial, inter alia, (a) awarded the parties joint legal custody of the children, (b) established a holiday and vacation visitation schedule for the children, (c) awarded the defendant a separate property credit in the sum of $150,000 with respect to the purchase of the marital residence, and (d) directed the defendant's child support payments to commence “on June 18, 2012.”

ORDERED that the judgment is modified, on the law and the facts, (1) by deleting the provision thereof awarding the parties joint legal custody of the children, (2) by deleting the provision thereof establishing a holiday and vacation visitation schedule for the children, and (3) by deleting from the decretal paragraph directing the defendant to pay child support in the sum of $425 per month the words “commencing on June 18, 2012,” and substituting therefor the words “retroactive to August 2, 2010”; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a reopened hearing on the issue of custody and a new custody determination thereafter in accordance herewith, and the determination of a new holiday and vacation visitation schedule for the children. Pending the new determinations, the holiday and vacation visitation schedule set forth in the judgment of divorce shall remain in effect.

In adjudicating custody rights, the most important factor to be considered is the best interests of the children (Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260), which requires an evaluation of the “totality of [the] circumstances” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765). In this case, new facts and evidence, which this Court may properly consider, suggest that the current custodial arrangement may not be in the children's best interests. In light of these new facts and evidence, the record before us is no longer sufficient to determine which custodial arrangement would be in the children's best interests ( see Matter of Michael B., 80 N.Y.2d 299, 318, 590 N.Y.S.2d 60, 604 N.E.2d 122; Matter of Chow v. Holmes, 63 A.D.3d 925, 925–926, 883 N.Y.S.2d 221; Matter of Gatke v. Johnson, 50 A.D.3d 798, 854 N.Y.S.2d 660; Matter of Antonette Alasha E., 8 A.D.3d 375, 777 N.Y.S.2d 757). Accordingly, we remit the matter to the Supreme Court, Queens County, for a reopened hearing, at which the new facts and evidence shall be considered, and a new custody determination thereafter. We express no opinion as to the appropriate determination.

“When adjudicating visitation rights, the court's first concern is ‘the welfare and interests of the children’ ” (McGrath v. D'Angio–McGrath, 42 A.D.3d 440, 441, 839 N.Y.S.2d 537, quoting Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Here, while we agree with the Supreme Court that the parties should share holidays and vacations with the children equally, the schedule created by the Supreme Court is ambiguous and unworkable. Additionally, the schedule unrealistically requires the parties to cooperate in coordinating their respective parenting time during the children's summer vacations. Accordingly, we remit the matter to the Supreme Court, Queens County, to set forth a new scheduleof holiday and vacation visitation that is in the best interests of the children ( see Matter of Felty v. Felty, 108 A.D.3d 705, 708–709, 969 N.Y.S.2d 557; Matter of Grunwald v. Grunwald, 108 A.D.3d 537, 968 N.Y.S.2d 575; Matter of Ross v. Morrison, 98 A.D.3d 515, 517, 949 N.Y.S.2d 186; Matter of Aguirre v. Romano, 73 A.D.3d 912, 914, 900 N.Y.S.2d 150). The new schedule must allow the parties to share equally in the children's vacations and holidays and must set forth unambiguous rules for establishing a summer vacation schedule.

Moreover, the Supreme Court erred in failing to make its award of permanent child support retroactive to August 2, 2010, which was the date on which the mother caused copies of the summons and verified complaint, containing a demand for child support, to be served upon the father ( seeDomestic Relations Law § 236[B][7][a]; Mosso v. Mosso, 84 A.D.3d 757, 759, 924 N.Y.S.2d 394; Louzoun v. Montalto, 70 A.D.3d 652, 653, 893 N.Y.S.2d 630; Higgins v. Higgins, 50 A.D.3d 852, 854, 857 N.Y.S.2d 171).

Finally, the Supreme Court providently exercised its discretion in awarding the father a separate property credit in the sum of $150,000 with respect to the purchase of the marital residence ( see Patete v. Rodriguez, 109 A.D.3d 595, 597, 971 N.Y.S.2d 109; Tsigler v. Kasymova, 73 A.D.3d 1159, 1160, 902 N.Y.S.2d 128; see generally Formica v. Formica, 101 A.D.3d 805, 806, 957 N.Y.S.2d 149).