SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

341 

CAF 11-00218 

PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.

 

 

IN THE MATTER OF JOSEPH DINGELDEY, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

ARLENE B. DINGELDEY, RESPONDENT-RESPONDENT. 

 

ALAN BIRNHOLZ, EAST AMHERST, FOR PETITIONER-APPELLANT. 

DENIS A. KITCHEN, JR., WILLIAMSVILLE, FOR RESPONDENT-RESPONDENT.

JEFFREY M. HARRINGTON, ATTORNEY FOR THE CHILD, WEST SENECA, FOR ANGELA

N.D. 

 

Appeal from an order of the Family Court, Erie County (Kevin M.

Carter, J.), entered December 14, 2010 in a proceeding pursuant to

Family Court Act article 6. The order denied the petition in part. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this custody proceeding pursuant to Family Court

Act article 6, petitioner father appeals from an order denying that

part of his petition seeking to modify the prior custody arrangement

with respect to the parties’ daughter. Pursuant to the judgment of

divorce, respondent mother had sole custody of both the daughter and

the parties’ son. During the course of the evidentiary hearing on the

petition, the parties agreed that custody of the son would be

transferred to the father, and the hearing continued with respect to

the daughter. After the father rested, the mother moved for a

directed verdict on the ground that the father had failed to establish

a sufficient change of circumstances to modify custody of the

daughter. The daughter’s Attorney for the Child joined in the motion,

stating that the teenage daughter strongly preferred to continue

living with the mother in Erie County, rather than moving to Tennessee

to live with the father and his new wife. Family Court granted the

motion based on the father’s failure to establish a change of

circumstances, but the court nevertheless went on to state that, based

on the evidence presented by the father, it was not in the best

interests of the daughter to change custody to the father. 

Even assuming, arguendo, that the father established “a change in

circumstances sufficient to warrant an inquiry into whether the best

interests of the [daughter] warranted a change in custody” (Matter of
-2- 341 

CAF 11-00218 

York v Zullich, 89 AD3d 1447, 1448), “we conclude on the record before

us that a change in custody would not be in the best interests of the

[daughter]” (Matter of VanDusen v Riggs, 77 AD3d 1355, 1355; see

Matter of Walker v Cameron, 88 AD3d 1307, 1308; Matter of Yaddow v

Bianco, 67 AD3d 1430, 1431). As the court stated in its decision

granting the mother’s motion for a directed verdict, although both

parties have problems, the mother is taking active steps to deal with

her problems, and, more importantly, the daughter is doing very well

while under her care. We also note that, “[w]hile the express wishes

of [the] child[ ] are not controlling, they are entitled to great

weight, particularly where [the child’s] age and maturity would make

[his or her] input particularly meaningful” (Matter of Stevenson v

Stevenson, 70 AD3d 1515, 1516, lv denied 14 NY3d 712 [internal

quotation marks omitted]; see Matter of O’Connor v Dyer, 18 AD3d 757,

757). Here, the daughter, who is now 15 years old, expressed a strong

desire to remain with her mother. We therefore conclude that the

court’s custody determination is supported by a sound and substantial

basis in the record and will not be disturbed (see Matter of Messimore

v Messimore, 89 AD3d 1547; Matter of McLeod v McLeod, 59 AD3d 1011,

1011).

Entered: March 23, 2012 Frances E. Cafarell

Clerk of the Court