State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 14, 2016 520716 

________________________________

PAOCHING FUNARO,

Respondent,

v MEMORANDUM AND ORDER

DOMINICK R. FUNARO,

Appellant.

________________________________

Calendar Date: May 23, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

The Arquette Law Firm, PLLC, Clifton Park (Tammy J.

Arquette of counsel), for appellant.

Barrett D. Mack, Albany, for respondent.

Nicole R. Rodgers, Saratoga Springs, attorney for the

child.

__________

Lynch, J.

Appeal from a judgment of the Supreme Court (Jensen, J.),

entered September 25, 2014 in Saratoga County, awarding, among

other things, equitable distribution of the parties' marital

property, upon a decision of the court.

Plaintiff (hereinafter the wife) and defendant (hereinafter

the husband) were married on August 7, 2004 and have one child

(born in 2006). The wife left the marital residence in November

2012 and commenced this action for a divorce in January 2013. In

February 2014, at the conclusion of a bench trial, which

principally focused on the issue of custody, Supreme Court issued

a temporary custody order granting the parties joint legal and
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shared physical custody of the child and authorizing the wife to

enroll the child in counseling.1 In July 2014, Supreme Court

issued written findings of fact and conclusions of law granting

the wife sole legal custody and primary physicial custody of the

child, with parenting time to the husband. The court also

distributed the marital property and debt, directed the wife to

pay maintenance to the husband and ordered the husband to pay

child support and to purchase a life insurance policy. The

judgment of divorce and order of custody were issued and filed in

September 2014. The husband now appeals.2 

A court's primary concern in a child custody determination

is the best interests of the child (see Eschbach v Eschbach, 56

NY2d 167, 171 [1982]; Bowman v Engelhart, 112 AD3d 1187, 1187

[2013]). This determination is made through consideration of

"such factors as maintaining stability for the child, the child's

wishes, the home environment with each parent, each parent's past

performance, relative fitness, ability to guide and provide for

the child's overall well-being, and the willingness of each

parent to foster a relationship with the other parent" (Matter of

Jolynn W. v Vincent X., 85 AD3d 1217, 1217 [2011] [internal

quotation marks and citations omitted], lv denied 17 NY3d 713

[2011]; see Bowman v Engelhart, 112 AD3d at 1187). While joint

custody is preferred, if the parents are unable to communticate

and make decisions cooperatively, it may not be possible (see

Matter of Benjamin v Lemasters, 125 AD3d 1144, 1145 [2015];

Matter of DiMele v Hosie, 118 AD3d 1176, 1177 [2014]). 

Indisputably, the evidence demonstrated that both parents

1 By this temporary order, Supreme Court primarily

formalized the informal custodial arrangements that the parties

had been attempting to follow. We reject the husband's

threshhold argument that the delay between the temporary order

and the permanent order necessitated any further fact-finding

(compare E.V. v R.V., 130 AD3d 920, 921-922 [2015]). 

2 Except insofar as it relates to his argument that he is

unable to comply with Supreme Court's economic award, the husband

does not challenge the court's child support order. 
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love the child and were able to provide an adequate home

environment following their separation. Although the wife worked

two jobs, the evidence revealed that she had the more flexible

schedule and that she was the parent who was primarily

responsible for the child's health care and education needs. The

evidence also demonstrated that, since their separation, the

parties rarely agreed on what was best for the child. For

example, at trial, the parties testified that they could not

agree to send the child to summer school or to counseling, even

though both were recommended by the child's teachers. While the

wife favored pursuing both recommendations, the husband explained

that, even though he did not speak to the teachers about these

recommendations, he refused to consent because he knew what the

child needed to do to remain on track academically during the

summer. As for counseling, the husband explained that he spent

hours talking to and "analyzing" the child and he did not believe

it was necessary – an approach we find unsettling.

Although there was no finding of alienation, there was

evidence that the husband engaged the child in inappropriate

conversations regarding the parties' separation, their financial

situation and the wife and her paramour, and that he even

discussed the wife's trial testimony during the course of the

fact-finding hearing with the child. Mary C. O'Connor, a

psychologist assigned by Supreme Court, interviewed the parties

and the child and reported that the child "echoed several adultlike negative remarks" about the wife. O'Connor also confirmed

that the child had been "compromised" by the husband's

"disparaging behavior" and opined that the husband demonstrated

poor judgment by treating the child as his "buddy," allowing the

child to play adult/combat-themed video games and to access the

Internet without supervision. In contrast, she described the

wife as an "exceptionally skilled, organized, and consistently

positive parent capable of providing [the child] with the

structure and support necessary to facilitate his development and

encourage a sustained positive father-son relationship."

Although the husband asserted that O'Connor lied in her

report, Supreme Court discredited his testimony and we defer to

the court's determination in this regard (see Matter of Ryan v

Lewis, 135 AD3d 1135, 1137 [2016]). Further, we are mindful that
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both the attorney for the child and O'Connor were amenable to the

parties sharing custody of the child, but neither position was

binding on the trial court (see Matter of Virginia C. v Donald

C., 114 AD3d 1032, 1035 [2014]; Matter of Conway v Gartmond, 108

AD3d 667, 668 [2013]). Giving the requisite deference to Supreme

Court's credibility determinations (see Matter of DiMele v Hosie,

118 AD3d at 1177), we find that the award of sole legal and

primary physical custody to the wife was supported by a sound and

substantial basis in the record (see Fermon v Fermon, 135 AD3d

1045, 1046 [2016]; Robert B. v Linda B., 119 AD3d 1006, 1008-1010

[2014], lv denied 24 NY3d 906 [2014]; Matter of Festa v Dempsey,

110 AD3d 1162, 1163 [2013]; Jeannemarie O. v Richard P., 94 AD3d

1346, 1348 [2012]).

The husband also contends that Supreme Court should have

granted him more liberal parenting time. The trial court has

broad discretion in fashioning a parenting schedule that is in

the best interests of the child (see Matter of Finkle v Scholl,

___ AD3d ___, ___, 2016 NY Slip Op 04293, *3 [2016]. "It is well

settled that '[the court's] . . . findings in [this] regard are

entitled to great deference unless they lack a sound and

substantial basis in the record'" (Matter of Wagner v Wagner, 124

AD3d 1154, 1154 [2015], quoting Matter of Daniel v Pylinski, 61

AD3d 1291, 1292 [2009]). Here, in addition to extended vacation

periods and shared holidays, Supreme Court granted the husband

parenting time every other weekend and one weeknight each week. 

Inasmuch as this provides "frequent and regular access" to the

child, we discern no abuse of discretion (Matter of Daniel v

Pylinski, 61 AD3d at 1292 [internal quotation marks and citation

omitted]; see Musacchio v Musacchio, 107 AD3d 1326, 1329 [2013]). 

The husband also argues that Supreme Court's equitable

distribution award was unjust. It is well settled that equitable

distribution of marital property does not necessarily require 

property to be divided equally (see Vertucci v Vertucci, 103 AD3d

999, 1001 [2013]). Because Supreme Court has "substantial

discretion" when making an equitable distribution award, we will

not disturb its determination "absent an abuse of discretion or

failure to consider the requisite statutory factors" (Buchanan v

Buchanan, 132 AD3d 1182, 1183 [2015] [internal quotation marks

and citations omitted]). Here, the court determined that the
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marital residence,3 certain checking and savings accounts, the

wife's pension and 401(k) account, five vehicles, the husband's

trade certificate and various household items and jewelry were

marital property.4 Further, the court determined that, in

addition to the note and mortgage on the marital residence, the

parties borrowed $16,000 to perform certain home repairs during

the marriage. Further, the parties had marital debt consisting

of two credit cards with balances of $4,750 and $5,000, a

personal loan in the amount of $6,949, a line of credit in the

amount of $9,867 obtained to finance the husband's pursuit of the

trade certificate and the husband's education loans. The court

directed the parties to sell the marital residence, but awarded

the husband exclusive occupancy and directed him to pay the

mortgage and all carrying charges during the pendency of the

sale. The husband was also awarded one half of the net proceeds

after the sale of the marital residence, one half of the wife's

401(k) account and one half of the proceeds from the sale of the

vehicles and household items. With regard to the marital debt,

the court essentially divided it equally between the parties,

directed the wife to assume responsibility for payment of the

larger credit card balance, and the card with the smaller balance

was given to the husband. He was also directed to pay his own

student loan debt. 

The husband's primary argument on appeal is that Supreme

Court did not give adequate consideration to the statutory

factors before assigning him responsibility for essentially one

half of the parties’ marital debt, and he contends that he does

not have the means to meet his monthly financial obligations

resulting from the distributive award. Here, there was no

evidence that the debt was solely incurred by either party but,

rather, that it was obtained for household improvements and

expenses. Considering the circumstances and that Supreme Court

3 The parties paid $197,500 for the marital residence. At

the time of trial, its fair market value was $245,000 and there

was $181,000 payable on the note.

4 There was no evidence presented with regard to the value

of the trade certificate. 
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awarded the husband essentially one half of the marital assets,

we cannot say that the court abused its discretion by allocating

the marital debt substantially equally to each party (see Cornish

v Eraca-Cornish, 107 AD3d 1322, 1323-1324 [2013]; McKeever v

McKeever, 8 AD3d 702, 702-703 [2004]; Corbett v Corbett, 6 AD3d

766, 768 [2004]). 

The husband also challenges Supreme Court's maintenance

award, consisting of $200 per week from July 2014 to December

2014, reduced to $100 per week throughout 2015. This

determination is left to the trial court's discretion and will

not be disturbed as long as the court explains the basis for its

conclusions, considers the parties' predivorce standard of living

and statutory factors – such as the income and property of the

parties, the length of the marriage, the age and health of the

parties, the need of either party to obtain education or training

and the equitable distribution of the marital property (see

Domestic Relations Law § 236 [B] [former (6)]; Orioli v Orioli,

129 AD3d 1154, 1155 [2015]). Spousal maintenance is generally

not supposed to be permanent, but is intended to allow the

recipient time to become self-sufficient (see Vantine v Vantine,

125 AD3d 1259, 1261 [2015]). Here, although he does not earn as

much as the wife does, the husband is young, healthy and

gainfully employed. Under the circumstances, Supreme Court's

maintenance award was not an abuse of discretion because the

court adequately considered the statutory factors and noted the

husband's ability to support himself (see Curley v Curley, 125

AD3d 1227, 1228-1229 [2015]; Quarty v Quarty, 96 AD3d 1274, 1277

[2012]). 

Finally, although we find that Supreme Court was authorized

to direct the husband to purchase a life insurance policy in the

amount of $250,000 (see Murray v Murray, 101 AD3d 1320, 1325

[2012], lv dismissed 20 NY3d 1085 [2013]), the husband should

have been allowed to obtain a declining term policy that would

reduce the amount of coverage by the amount of child support that

he actually paid (see Quinn v Quinn, 61 AD3d 1067, 1073 [2009];

Matter of Anonymous v Anonymous, 31 AD3d 955, 957 [2006]). 

Garry, J.P., Egan Jr., Devine and Mulvey, JJ., concur.
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ORDERED that the judgment is modified, on the facts,

without costs, by reversing so much thereof as directed defendant

to maintain a $250,000 life insurance policy; defendant is

permitted to obtain a declining term life insurance policy in the

amount of $250,000; and, as so modified, affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court