        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

213
CA 15-01609
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.


DARA R. CUNNINGHAM, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ARLYN C. CUNNINGHAM, JR., DEFENDANT-RESPONDENT.
(APPEAL NO. 3.)


MICHAEL STEINBERG, ROCHESTER, FOR PLAINTIFF-APPELLANT.

J. SCOTT PORTER, SENECA FALLS, FOR DEFENDANT-RESPONDENT.

TIFFANY M. SORGEN, ATTORNEY FOR THE CHILD, CANANDAIGUA.


     Appeal from a judgment of the Supreme Court, Yates County (Dennis
F. Bender, A.J.), entered July 24, 2015 in a divorce action. The
judgment, insofar as appealed from, awarded defendant sole legal
custody of the parties’ child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: These consolidated appeals arise from litigation
that began when plaintiff-petitioner (mother) commenced an action for
divorce and ancillary relief against defendant-respondent (father).
Within that pending action, the father filed an order to show cause
seeking custody of the parties’ child, and the mother filed a family
offense petition against the father. In appeal No. 1, the mother
appeals from an order that, inter alia, granted custody of the
parties’ child to the father and dismissed her family offense petition
and, in appeal No. 2, she appeals from a further order that denied her
motion for leave to renew with respect to the prior order. In appeal
No. 3, she appeals from a judgment of divorce that, insofar as
appealed from, awarded sole legal custody of the parties’ child to the
father.

     Initially, we dismiss the appeal from that part of the order in
appeal No. 1 awarding custody of the parties’ child to the father, and
we also dismiss appeal No. 2, because the right of appeal from those
orders terminated upon entry of the final judgment (see Hughes v
Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988). The issues in those
appeals are brought up for review on appeal from the final judgment in
appeal No. 3 (see CPLR 5501 [a] [1]). We note, however, that the part
of the order in appeal No. 1 that dismissed the mother’s family
offense petition constituted the final resolution of that petition,
                                 -2-                             213
                                                           CA 15-01609

and thus that part of the appeal from the order in appeal No. 1 is
properly before us.

       We reject the mother’s contention in appeal No. 1 that Supreme
Court erred in dismissing her family offense petition. “The
determination whether [the father] committed a family offense was a
factual issue for the court to resolve, and ‘[the] court’s
determination regarding the credibility of witnesses is entitled to
great weight on appeal and will not be disturbed [where, as here, it
is] supported by the record’ ” (Matter of Martin v Flynn, 133 AD3d
1369, 1370; see Matter of Megyn J.B. v Cory A.D., 113 AD3d 1086,
1086).

     In appeal No. 3 and the parts of all of the other appeals that
are brought up for review on appeal from the final judgment, we reject
the mother’s contention that the court erred in awarding custody of
the parties’ child to the father. It is well settled that, when
making a child custody determination, “the court must consider all
factors that could impact the best interests of the child, including
the existing custody arrangement, the current home environment, the
financial status of the parties, the ability of each parent to provide
for the child’s emotional and intellectual development and the wishes
of the child . . . No one factor is determinative because the court
must review the totality of the circumstances” (Matter of Marino v
Marino, 90 AD3d 1694, 1695; see generally Eschbach v Eschbach, 56 NY2d
167, 171-174; Matter of Cross v Caswell, 113 AD3d 1107, 1107). “A
court’s custody determination, including its evaluation of a child’s
best interests, is entitled to great deference and will not be
disturbed [where, as here,] it is supported by a sound and substantial
basis in the record” (Sheridan v Sheridan, 129 AD3d 1567, 1568; see
Matter of Burns v Herrod, 132 AD3d 1336, 1337; Matter of LaMay v
Staves, 128 AD3d 1485, 1485-1486). The court’s determination is
supported by the evidence in the record, including that the mother
placed the child in a home-schooling program in order to permit the
mother to relocate with the child in contravention of the court’s
prior orders, and that the mother is only home schooling the child a
maximum of one day per week. In addition, we see no reason to
overturn the court’s determination not to credit the mother’s version
of the events underlying her claims of domestic violence and sexual
abuse.

     The mother’s contentions with respect to   the Attorney for the
Child are not properly before us because they   are raised for the first
time in her reply brief (see Matter of Warren   v Miller, 132 AD3d 1352,
1354; Matter of Yorimar K.-M., 309 AD2d 1148,   1149).




Entered:   March 25, 2016                         Frances E. Cafarell
                                                  Clerk of the Court
