Cagamek v. Cagamek

233 A.D.2d 701, 650 N.Y.S.2d 365

David A. Caganek, Respondent,

Lesley S. Caganek, Appellant.

Supreme Court, Appellate Division, Third Department, New York

(November 21, 1996)

CITE TITLE AS: Caganek v Caganek

Mercure, J.

Appeal from an order of the Supreme Court (Monserrate, J.), entered October 23, 1995 in Broome County, which granted plaintiff custody of the parties’ children.

During the pendency of this action for a divorce, plaintiff sought an order granting him custody of the parties’ children (aged three and one).FN* Following the appointment of a Law Guardian and a fact-finding hearing, Supreme Court granted the application and authorized plaintiff’s relocation with the children to Texas. Defendant appeals and we now affirm.

FN* Contrary to the express requirement of CPLR 5526, the record on appeal contains neither the pleadings in the action for divorce nor the papers supporting and opposing plaintiff’s application for custody. Nonetheless, neither plaintiff nor the Law Guardian has objected to this omission and we have been able to ascertain many of the underlying facts from Supreme Court’s detailed decision, the transcript of the October 2, 1995 hearing and the parties’ briefs. It appears that although plaintiff initially moved for temporary custody, in view of plaintiff’s forthcoming transfer to Texas and in furtherance of judicial economy, a fact-finding hearing was conducted and the issue of permanent custody determined by Supreme Court prior to the judgment of divorce.

Based upon our review of the record, we conclude that, although predating the decision of the Court of Appeals in Matter of Tropea v Tropea (87 NY2d 727), in its determination Supreme Court gave appropriate consideration to the actual best interests of the children (compare, Matter of Clark v Williams, 229 AD2d 686, with Matter of King v Mitchell, 229 AD2d 710). As for Supreme Court’s application of that standard, we agree with its conclusion that, given the fact that plaintiff’s employer was closing its local facility and relocating plaintiff’s project (and plaintiff’s $43,000 a year job) to Texas, plaintiff was faced with a choice of either relocating with his project team or joining the ranks of unemployed computer engineers in the Broome County area. It necessarily follows that the relocation was, as a practical matter, unavoidable and that, regardless of whether Supreme Court granted custody toplaintiff*702 or to defendant, the children were going to be deprived of frequent contact with one of their parents. Under the circumstances and particularly in view of the fact that this is an initial custody proceeding, the inquiry properly centered on the question of which parent was the more fit custodian (see, Eschbach v Eschbach, 56 NY2d 167, 174; Friederwitzer v Friederwitzer, 55 NY2d 89, 94), and the record provided ample support for Supreme Court’s finding that the children’s best interests would be served by an award of custody to plaintiff (see, supra).

Notably, as found by Supreme Court, defendant proved herself to be immature and irresponsible, making credit purchases of a new car, washer and dryer and television despite the parties’ admitted “dire” financial condition, being evicted from her apartment as a result of her issuance of bad checks to the landlord, breaking into the marital residence following the parties’ separation to steal food and other items, “going out with the girls” every Saturday night without fail and drinking alcoholic beverages even though she suffers from diabetes and her blood sugar levels had been “out of whack” for the past six months. In contrast, defendant acknowledged that plaintiff was a “wonderful father” and admitted that his parents, who would likely join him in Texas, had always served as the children’s primary caregivers. We also agree with Supreme Court’s observation that defendant could improve the situation by transferring her employment with Jenny Craig, a nationwide weight control service, to a location less distant from Texas (see, Matter of Tropea v Tropea, supra, at 740).

As a final matter, defendant’s concern that her financial circumstances, the distance between Broome County and Texas, and Supreme Court’s provision for visitation with the children “as liberal and extensive … as is practicable under the circumstances” will effectively deprive her of frequent and regular access to the children should be addressed in an application to Supreme Court for more specific visitation, including provision for payment of the expenses thereof, if and when plaintiff relocates to Texas, based upon the circumstances then in effect.

Defendant’s further contentions have been considered and found unavailing.

Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur.

Ordered that the order is affirmed, without costs.