SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
920.2
CAF 12-00317
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.
IN THE MATTER OF KERENSA CRUDELE, FORMERLY
KNOWN AS KERENSA WELLS, PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
BRIAN WELLS, RESPONDENT-RESPONDENT.
(APPEAL NO. 2.)
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
PETITIONER-APPELLANT.
OSBORN, REED & BURKE, LLP, ROCHESTER (JEFFREY L. TURNER OF COUNSEL),
FOR RESPONDENT-RESPONDENT.
MARYBETH D. BARNET, ATTORNEY FOR THE CHILD, CANANDAIGUA, FOR HAYDEN W.
Appeal from an order of the Family Court, Ontario County (Stephen
D. Aronson, A.J.), entered November 30, 2011 in a proceeding pursuant
to Family Court Act article 6. The order granted the parties’
respective motions for leave to reargue with respect to the prior
custody order entered October 31, 2011 and, upon reargument, directed
inter alia that the parties’ child attend school in the Pittsford
School District.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner mother commenced this Family Court Act
article 6 proceeding seeking a modification of the custody provisions
in the parties’ judgment of divorce by awarding her sole custody of
the parties’ child. Respondent father also filed a petition seeking
sole custody and later amended that petition to request an order
directing the child to attend school in the Pittsford School District.
The father thereafter withdrew that part of the amended petition
seeking sole custody. By the order in appeal No. 1, Family Court
dismissed the mother’s petition (prior order) and, in its decision,
stated that, had the father not withdrawn his amended petition, it
would have determined that the child should attend Pittsford schools.
By the order in appeal No. 2, the court granted the parties’
respective motions for leave to reargue with respect to the prior
order. Upon reargument, the court noted that the father did not
intend to withdraw that part of the amended petition seeking a
determination regarding where the child should attend school, and thus
directed that the child attend Pittsford schools. We note at the
-2- 920.2
CAF 12-00317
outset that the mother’s appeal from the order in appeal No. 1 must be
dismissed inasmuch as that order was, in effect, superseded by the
order in appeal No. 2 (see generally Loafin’ Tree Rest. v Pardi
[appeal No. 1], 162 AD2d 985, 985).
We reject the mother’s contention that she established a change
in circumstances warranting an award of sole custody of the child to
her. “It is well settled that [a] party seeking a change in an
established custody arrangement must show a change in circumstances
[that] reflects a real need for change to ensure the best interest[s]
of the child” (Matter of Moore v Moore, 78 AD3d 1630, 1630, lv denied
16 NY3d 704 [internal quotation marks omitted]; see Matter of Maher v
Maher, 1 AD3d 987, 988-989). Here, although the mother testified that
the father was responsible for a complete breakdown in communication
between them, she stipulated to the admission in evidence of the
report of the court-appointed psychologist, wherein the psychologist
opined that the child was doing well under the current custody
arrangement and that the issues between the parties were not
insurmountable.
We further reject the mother’s contention that the court erred in
determining that it was in the child’s best interests to attend
Pittsford schools. It is well established that a trial court’s
determination of a child’s best interests shall be accorded great
weight and “will not be disturbed if it has a sound and substantial
basis in the record” (Matter of Deborah E.C. v Shawn K., 63 AD3d 1724,
1725, lv denied 13 NY3d 710; see generally Matter of Green v
Bontzolakes, 83 AD3d 1401, 1402, lv denied 17 NY3d 703). Although the
court appears to have accorded significant weight to New York State
Department of Education data on the merits of the Pittsford schools,
the court also heard evidence from the parties and an expert witness
that provided a sound and substantial basis for the court’s
determination that the child’s best interests would be served by her
attending Pittsford schools.
Finally, we have reviewed the mother’s remaining contentions and
conclude that they lack merit.
Entered: October 5, 2012 Frances E. Cafarell
Clerk of the Court