SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1042
CA 13-01495
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
JENNIFER L. RECH, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
MICHAEL B. RECH, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)
ZDARSKY, SAWICKI & AGOSTINELLI, LLP, BUFFALO (GERALD T. WALSH OF
COUNSEL), FOR DEFENDANT-APPELLANT.
EVANS & FOX LLP, ROCHESTER (MATTHEW M. PISTON OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.
KIMBERLY W. WEISBECK, ATTORNEY FOR THE CHILD, ROCHESTER.
Appeal from a judgment of the Supreme Court, Monroe County (John
M. Owens, J.), entered July 25, 2013 in a divorce action. The
judgment, among other things, dissolved the marriage between the
parties.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: On appeal from the parties’ judgment of divorce,
defendant husband contends that Supreme Court erred in denying his
motion, made during the pendency of the divorce action, to modify the
existing custody arrangement by transferring primary residential
custody of the parties’ child from plaintiff to him. In addition, he
challenges the equitable distribution award, as well as the denial of
his motion for a downward modification of child support, made during
the pendency of the divorce action, and the award of counsel fees to
plaintiff. We affirm.
The court did not abuse its discretion in denying defendant’s
motion to modify the existing custody arrangement. Although it is
undisputed that there were sufficiently changed circumstances to
justify the court’s re-examination of the stipulated custody
arrangement (see generally Matter of Wilson v McGlinchey, 2 NY3d 375,
380-381), we conclude that there is a sound and substantial basis in
the record for the court’s determination that the child’s best
interests were served by retaining primary residential custody with
plaintiff (see generally Eschbach v Eschbach, 56 NY2d 167, 171; Fox v
Fox, 177 AD2d 209, 210). Defendant’s contention to the contrary
reflects mere disagreement with the court’s determination, and cannot
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CA 13-01495
surmount the great deference given to trial courts under these
circumstances (see Matter of McDonald v Terry, 100 AD3d 1531, 1531).
We likewise reject defendant’s challenges to the equitable
distribution award. Defendant contends that the court erred in
refusing to order plaintiff to reimburse defendant for half of the
prejudgment carrying costs for the marital residence. It is well
settled, however, that the court has broad discretion to require one
party to pay all of the carrying costs of the marital residence where
that party has been its sole occupant during the course of the action
(see Soles v Soles, 41 AD3d 904, 906; Martin v Martin, 82 AD2d 431,
435-436), and it is undisputed that defendant maintained sole
occupancy of the marital residence after this action was commenced
(see e.g. Quarty v Quarty, 96 AD3d 1274, 1281). Moreover, by ordering
plaintiff to sell her interest to defendant, the court effectively
awarded him the value of the reduced mortgage principal and the
corresponding increase in home equity, and defendant has also had the
tax benefit of paying interest on the mortgage (see Chambers v
Chambers, 259 AD2d 807, 808). Defendant’s remaining challenges to the
equitable distribution award are either unsupported or affirmatively
contradicted by the record.
The court did not err in summarily denying defendant’s motion to
reduce his child support obligation inasmuch as defendant failed to
provide an updated statement of net worth in support of his motion
(see 22 NYCRR 202.16 [k] [2]; Garcia v Garcia, 104 AD3d 806, 806).
Finally, given the substantial wealth disparity between plaintiff and
defendant, we cannot say that the court erred in awarding counsel fees
to plaintiff (see generally DeCabrera v Cabrera-Rosete, 70 NY2d 879,
881; Leonard v Leonard, 109 AD3d 126, 129-130).
Entered: November 14, 2014 Frances E. Cafarell
Clerk of the Court