State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 519407 

____________________________________

In the Matter of TREVOR

ZAHURANEC,

Respondent,

v

NICOLE E. ZAHURANEC,

Appellant.

(Proceeding No. 1.)

(And Two Other Related Proceedings.)

____________________________________ MEMORANDUM AND ORDER

In the Matter of NICOLE E.

ZAHURANEC,

Appellant,

v

TREVOR ZAHURANEC,

Respondent.

(Proceeding No. 4.)

(And Another Related Proceeding.)

___________________________________

Calendar Date: September 8, 2015

Before: McCarthy, J.P., Egan Jr., Rose and Clark, JJ.

__________

Pamela B. Bleiwas, Ithaca, for appellant.

Margaret McCarthy, Ithaca, for respondent.

Robin Abrahamson Masson, Ithaca, attorney for the child.

__________
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Egan Jr., J.

Appeal from an order of the Family Court of Chemung County

(Brockway, J.), entered January 24, 2014, which, among other

things, granted petitioner's application, in proceeding No. 2

pursuant to Family Ct Act article 6, for modification of a prior

order of custody.

Trevor Zahuranec (hereinafter the father) and Nicole E.

Zahuranec (hereinafter the mother) are the divorced parents of a

child born in 2005. By order dated April 18, 2012, the parties

stipulated that they would share joint legal and physical custody

of their daughter and established an alternating schedule for

parenting time. Difficulties quickly developed and, in June

2012, the father commenced the first two of these proceedings –

one seeking to enforce the terms of the April 2012 order and the

other seeking modification thereof. An additional

enforcement/violation petition was filed by the father in

November 2012, in response to which the mother cross-petitioned

for modification of the prior order and commenced an enforcement

proceeding of her own. A fact-finding hearing and a Lincoln

hearing ensued, at the conclusion of which Family Court, insofar

as is relevant here, granted the father's application for

modification of the prior custody order, awarded the father sole

legal and physical custody of the child and established a

visitation schedule for the mother. Family Court also dismissed

the parties' respective enforcement/violation petitions. This

appeal by the mother ensued.

The mother, as so limited by her brief, contends that

Family Court's award of sole legal and physical custody to the

father lacks a sound and substantial basis in the record. We

disagree and, accordingly, affirm Family Court's order.

"A parent seeking to modify an existing custody order bears

the burden of demonstrating a sufficient change in circumstances

since the entry of the prior order to warrant modification

thereof in the child's best interests" (Matter of Dornburgh v

Yearry, 124 AD3d 949, 950 [2015] [internal quotation marks,

brackets and citations omitted]; accord Matter of Palmatier v

Carman, 125 AD3d 1139, 1139 [2015]). The required change in
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circumstances, in turn, may be found to exist where "the parties'

relationship has deteriorated to a point where there is no

meaningful communication or cooperation for the sake of the

child" (Matter of Paul A. v Shaundell LL., 117 AD3d 1346, 1348

[2014], lv dismissed and denied 24 NY3d 937 [2014]; see Matter of

Sonley v Sonley, 115 AD3d 1071, 1072 [2014]). Here, the mother

readily acknowledged that she and the father "cannot seem to get

along on certain issues" – as evidenced by, among other things,

the parties' disparate views on the child's religious upbringing,

her celebration of certain holidays and the need for her to be

engaged in counseling – and candidly testified that she wished to

have "minimal" contact with the father. In view of the apparent

animosity between the parties and their demonstrated inability to

work in a cooperative fashion for the sake of their daughter,

Family Court properly concluded that the father had demonstrated

the required change in circumstances, thereby triggering a best

interests inquiry.

Having concluded that joint custody no longer was feasible,

Family Court was left to fashion a custodial arrangement that

would be in the child's best interests. Upon considering, among

other things, "each parent's ability to furnish and maintain a

suitable and stable home environment for the child, past

performance, relative fitness, ability to guide and provide for

the child's overall well-being and willingness to foster a

positive relationship between the child and the other parent"

(Matter of Bailey v Blair, 127 AD3d 1274, 1276 [2015] [internal

quotation marks, brackets and citations omitted]), as well as the

transcript of the Lincoln hearing (see Matter of Shokralla v

Banks, 130 AD3d 1263, 1265 [2015]), we are satisfied that Family

Court's decision to award sole legal and physical custody to the

father and specified visitation to the mother has a sound and

substantial basis in the record. The father, a self-employed

general contractor, and his wife, a substitute school teacher,

testified at length regarding their work schedules, home life,

religious practices, involvement in the child's education and

activities that they engage in as a family. Based upon this

testimony, which Family Court recounted in great detail in its

written decision, the court concluded that the father – with his

flexible work schedule, established daily routine and "childcentered" approach to raising his daughter – could provide the
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child with a more stable and consistent home environment.1

Additionally, given the mother's demonstrated animosity toward

the father, Family Court reasoned that the father would be the

parent who was more likely to foster a positive relationship

between the child and her noncustodial parent. Granting due

deference to Family Court's credibility determinations (see

Matter of Gilbert v Gilbert, 128 AD3d 1286, 1287 [2015]), we

discern no basis upon which to disturb the underlying award of

custody.

McCarthy, J.P., Rose and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 Notably, rather than providing Family Court with

specific information regarding her relationship with her daughter

and the quality of the home environment that she could provide,

the mother devoted the bulk of her testimony at the hearing to

highlighting the father's perceived parental shortcomings.