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

208
CAF 11-01578
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF WILLARD SAPERSTON,
PETITIONER–RESPONDENT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HEATHER HOLDAWAY,
RESPONDENT-PETITIONER-APPELLANT.


JENNIFER M. LORENZ, LANCASTER, FOR RESPONDENT-PETITIONER-APPELLANT.

CARNEY & GIALLANZA, BUFFALO (MARY G. CARNEY OF COUNSEL), FOR
PETITIONER-RESPONDENT-RESPONDENT.

EMILIO COLAIACOVO, ATTORNEY FOR THE CHILD, BUFFALO, FOR WES H.


     Appeal from an order of the Family Court, Erie County (Sharon M.
LoVallo, A.J.), entered July 1, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted the
parties joint custody of their child and designated petitioner-
respondent the primary residential parent.

     It is hereby ORDERED that the order so appealed from is modified
on the law and the facts by awarding primary physical custody of the
child to respondent-petitioner and as modified the order is affirmed
without costs and the matter is remitted to Family Court, Erie County,
for further proceedings in accordance with the following Memorandum:
Respondent-petitioner mother appeals from an order that, inter alia,
awarded the parties joint custody of their child and granted
petitioner-respondent father primary physical custody of the child.
We agree with the mother that Family Court’s determination with
respect to primary physical custody lacks a sound and substantial
basis in the record (see generally Sitts v Sitts, 74 AD3d 1722, 1723,
lv dismissed 15 NY3d 833, lv denied 18 NY3d 801; Fox v Fox, 177 AD2d
209, 211-212). We therefore modify the order by awarding primary
physical custody to the mother and remitting the matter to Family
Court to fashion an appropriate visitation schedule.

     We note at the outset that, inasmuch as this case involves an
initial custody determination, it cannot properly be characterized as
a relocation case to which the application of the factors set forth in
Matter of Tropea v Tropea (87 NY2d 727, 740-741) need be strictly
applied (see Matter of Moore v Kazacos, 89 AD3d 1546, 1546, lv denied
18 NY3d 806; Matter of Baker v Spurgeon, 85 AD3d 1494, 1496, lv
dismissed 17 NY3d 897; Matter of Schneider v Lascher, 72 AD3d 1417,
                                 -2-                           208
                                                         CAF 11-01578

1417, lv denied 15 NY3d 708). Although a court may consider the
effect of a parent’s relocation as part of a best interests analysis,
relocation is but one factor among many in its custody determination
(see Verity v Verity, 107 AD2d 1082, 1084, affd 65 NY2d 1002; Matter
of Torkildsen v Torkildsen, 72 AD3d 1405, 1406; Malcolm v Jurow-
Malcolm, 63 AD3d 1254, 1255-1256). Stated differently, “[i]n cases
involving the geographic relocation of the custodial parent, as in all
other custody proceedings, the primary focus of the court is the best
interests of the child, not the mere fact of relocation” (Matter of
Donald C.O. v Carolyn D. v B., 224 AD2d 930, 930). Here, the mother’s
relocation to Brooklyn was seemingly the predominant factor upon which
the court based its custody determination. Indeed, despite
acknowledging that this case is not a “ ‘relocation case[],’ ” the
court nonetheless proceeded to apply the Tropea factors, and concluded
that the mother failed to prove that her relocation was in the child’s
best interests. We conclude that the court erred. Inasmuch as this
case involves an initial custody determination, the court improperly
required the mother to establish by a preponderance of the evidence
that her move to Brooklyn was in the best interests of the child (see
Tropea, 87 NY2d at 741). Rather, the relevant issue is whether it is
in the best interests of the child to reside primarily with the mother
or the father (see generally Eschbach v Eschbach, 56 NY2d 167, 172-
174). We note in any event that the mother’s “relocation is not a
proper basis upon which to award primary physical custody to [the
father] . . . inasmuch as the child[] will need to travel between the
parties’ two residences regardless of which parent is awarded primary
physical custody” (Sitts, 74 AD3d at 1723).

     In addition to placing undue emphasis on the mother’s relocation,
we conclude that the court’s best interests determination is flawed
and lacks a sound and substantial basis in the record (see generally
Matter of Moran v Cortez, 85 AD3d 795, 796-797; Matter of Michael P. v
Judi P., 49 AD3d 1158, 1159). The court indicated that it considered
the following factors in rendering its determination: (1) the
continuity and stability of the existing custodial arrangement,
including the relative fitness of the parents and the length of time
the custodial arrangement has continued; (2) the quality of each
parent’s home environment; (3) the ability of each parent to provide
for the child’s emotional and intellectual development; and (4) the
financial status and ability of each parent to provide for the child
(see Fox, 177 AD2d at 210).

     With respect to the first factor, it is undisputed that, prior to
the commencement of this proceeding, when the child was approximately
14 months old, the mother was the child’s primary caregiver. The
father testified that, from the child’s birth until the commencement
of this proceeding, the mother was the primary caretaker of the child,
took the child to doctor appointments, and provided health insurance
for the child. There are no indications in the record that the mother
is unfit to care for the child and, indeed, the court specifically
found that there were no issues with respect to the mother’s ability
to care for the child. Significantly, the father testified that the
mother “taught [him] . . . almost everything [he] know[s] about how to
care for [the child].” We thus conclude that the first factor is in
                                 -3-                           208
                                                         CAF 11-01578

the mother’s favor.

     As for the second factor, i.e., the quality of each parent’s home
environment, the record reflects that both parents’ homes are
satisfactory to raise a child, and thus this factor does not favor
either party. The father resides in a four-bedroom farmhouse with his
parents in a rural community in Western New York, while the mother
lives in an apartment with 2½ bedrooms in the Park Slope neighborhood
of Brooklyn. With respect to the third factor, we conclude that the
mother demonstrated the greater ability to provide for the child’s
intellectual and emotional development. The mother is 35 years old,
holds a master’s degree in mental health counseling, and is a New York
State licensed mental health counselor. The father is 26 years old
with a bachelor’s degree in the entertainment business. The father
admitted that, when the child was a few months old, he became so
frustrated with the child’s crying that he “felt like throwing [the
child] against the wall.” In addition, the father testified that,
when the child was born, he did not know how to care for an infant,
nor did he take a parenting course until after he filed the custody
petition, when the child was 14 months old. Prior to commencing this
proceeding, the father lived in an apartment that, by his own
admission, was inadequate for a child. The father did not make his
apartment “baby ready” or seek alternate housing until the child was
14 months old. The father also testified that he voluntarily ceased
all contact with the child during the four months preceding the
commencement of this proceeding as a result of an argument he had with
the mother.

     With respect to the fourth factor, i.e., the financial status and
ability of each parent to provide for the child, the court concluded
that such factor weighs in favor of the father. We disagree, and
conclude that the court’s determination in that regard is unsupported
by the record. The evidence establishes that the mother is employed
by the University of Pittsburgh Medical Center and earns a salary of
approximately $69,000. Although the mother lives in Brooklyn, she
owns a home in Western New York and applies the rental income from
that home to her lease in Brooklyn. By contrast, the father works for
his family’s real estate business as an office manager and real estate
agent, and he testified that he earns approximately $10,000 a year.
The father acknowledged that his parents “subsidize [his] existence,”
and that they “pay pretty much [his] way through life.” The father
also admitted that, without the financial assistance of his parents,
he would struggle to pay child care and would have difficulty
supporting himself and the child. Although the father and the
Attorney for the Child emphasized the father’s alleged “earning
capacity,” we conclude on the record before us that the father’s
earning potential is entirely speculative. At the time of trial, the
father had been working as a real estate agent for more than three
years, yet he estimated that his income was $10,000 a year. The
father testified that he had three multimillion dollar commercial
listings that, if sold, would yield commissions of $150,000, $75,000
and $100,000, respectively. The father admitted, however, that two of
those properties had been on the market for approximately a year. To
the extent that the court’s findings concerning the father’s financial
                                  -4-                           208
                                                          CAF 11-01578

stability and earning capacity are based on the financial status of
the father’s parents, we note that the record contains no proof of the
financial status of the paternal grandparents.

     We further agree with the mother that the court erred in
admitting the father’s journal in evidence. There is no question that
the journal constitutes hearsay, i.e., “out-of-court statements
offered for the truth of the matter asserted” (Howard v Codick, 55
AD3d 1376, 1377), and the father failed to establish that the journal
fell within any recognized exception to the hearsay rule. In order to
admit a document as a past recollection recorded (see generally
Prince, Richardson on Evidence § 6-220 [Farrell 11th ed]), the
proponent must establish “that the document relates to matters the
witness observed, the matters were fairly fresh when recorded or
adopted, the witness testifies that the document accurately
represented his or her recollection and knowledge when it was made and
the witness is presently unable to recall the facts of the matter”
(Morse v Colombo, 31 AD3d 916, 917). Here, the father did not testify
that he could not recall the events that he recorded in the journal
(see Landsman v Village of Hancock, 296 AD2d 728, 732, appeal
dismissed 99 NY2d 529). Further, although the father testified that
he made the entries contemporaneously with the events contained
therein, a review of the journal reflects that the father later added
commentary and/or observations on the events discussed. In addition,
the journal contains alleged re-creations of texts and e-mails between
the parties, which were not produced. Those portions of the journal
violate the best evidence rule, which “requires the production of an
original writing where its contents are in dispute and sought to be
proven” (Kliamovich v Kliamovich, 85 AD3d 867, 869). We thus conclude
that, while counsel for the father could have utilized the journal to
refresh the father’s recollection as to specific dates or events, the
court erred in allowing the admission of the entire document in
evidence (see Matter of Smith v Miller, 4 AD3d 697, 697-698).
Finally, we reject the contention of the father and the Attorney for
the Child that any error in the admission of the journal is harmless.
The journal contains numerous prejudicial “notes” concerning the
father’s impressions of the mother and justifications for his conduct,
and the court referred to the journal in its decision.

     All concur except CENTRA and MARTOCHE, JJ., who dissent and vote to
affirm in the following Memorandum: We respectfully dissent. “An
award of custody is a matter that rests within the sound discretion of
the hearing court” (Matter of Donald C.O. v Carolyn D. v B., 224 AD2d
930, 930). Because “Family Court’s determination in a custody dispute
is based upon a first-hand assessment of the parties, as well as their
credibility, character and temperament, and the [court’s]
determinations are to be accorded great weight on appeal, such a
determination should not be disturbed unless it lacks a sound and
substantial basis in the record” (Matter of Demeter v Alayon, 90 AD3d
1045, 1045; see Matter of Sweetser v Willis, 91 AD3d 963, 963-964).
Contrary to the majority’s determination, we conclude that the court’s
decision to award primary physical custody to petitioner-respondent
father has a sound and substantial basis in the record and should not
be disturbed.
                                 -5-                           208
                                                         CAF 11-01578

     In this initial custody determination, “the overriding priority
is the best interests of the child” (Matter of Lynch v Gillogly, 82
AD3d 1529, 1530; see Donald C.O., 224 AD2d at 930). While a strict
application of the relocation factors set forth in Matter of Tropea v
Tropea (87 NY2d 727, 740-741) was not required, nevertheless
respondent-petitioner “mother’s relocation was ‘a very important
factor’ among all factors to be considered in making a best interests
determination, as was the effect of the move on the child’s
relationship with the father if the mother were awarded custody”
(Matter of Sullivan v Sullivan, 90 AD3d 1172, 1173; see Matter of
Schneider v Lascher, 72 AD3d 1417, 1417, lv denied 15 NY3d 708).

     Here, the record establishes that both parents are loving and
fit, able to care for the child and capable of providing financial
support and a suitable and stable home for the child. The record
supports the court’s finding, however, that the mother is
“distrustful, somewhat [overreactive] and chooses to dictate rather
than cooperate and communicate.” For example, the mother did not
notify the father of her planned move and did not provide a forwarding
address. Additionally, after the father learned of the relocation, he
brought an order to show cause to have the child returned, which was
granted, and the mother avoided service of the order. The court also
found that “[v]arious allegations in [the m]other’s petition proved to
be unfounded, exaggerated or without merit.”

     Each parent has bonded with the child and is capable of fostering
his intellectual and emotional development. Although the mother was
the child’s primary caretaker during the child’s first year, the
father has the advantage of an extended family support network in
Western New York, and the child would have increased access to his
extended family if he resides with the father (see Matter of
Torkildsen v Torkildsen, 72 AD3d 1405, 1407). The relevant factors do
not weigh significantly on the side of either party. Thus,
“[a]ccording the appropriate great deference to the court’s
opportunity to hear the testimony and assess the credibility of
witnesses, we find a sound and substantial basis for its conclusions
in this record . . . and conclude that the custody award in this
difficult case was based upon careful consideration of the appropriate
factors and the child’s best interests” (Schneider, 72 AD3d at 1419
[internal quotation marks omitted]). Finally, contrary to the view of
the majority, we conclude that any error in the admission of the
father’s journal in evidence is harmless inasmuch as the father
testified and the admissible evidence at the hearing, without
consideration of the father’s journal, supports the court’s
determination (see Matter of Matthews v Matthews, 72 AD3d 1631, 1632,
lv denied 15 NY3d 704; Matter of Garrett D. v Kevin L., 56 AD3d 1183,
1183-1184, lv denied 12 NY3d 702). We would therefore affirm the
order.



Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
