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

17
CA 12-01289
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


TERESA M. BELEC, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

DAVID A. BELEC, DEFENDANT-APPELLANT.


MICHAEL D. SCHMITT, ROCHESTER, FOR DEFENDANT-APPELLANT.

INCLIMA LAW FIRM, PLLC, ROCHESTER (CHARLES P. INCLIMA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Elma
A. Bellini, J.), entered September 30, 2011 in a divorce action. The
judgment, inter alia, determined the issues of custody and child
support.

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

     Memorandum: Defendant father appeals from a judgment that, inter
alia, determined the issues of custody and child support. We reject
the father’s contention that the Referee’s decision awarding sole
custody and primary physical residence of the child to plaintiff
mother, which decision was adopted by Supreme Court, lacked a sound
and substantial basis in the record. Initially, we reject the
father’s contention that the Referee failed to set forth a sufficient
factual basis for his decision. The Referee properly “set forth the
facts [he] deem[ed] essential” in making his determination (Matter of
Mathewson v Sessler, 94 AD3d 1487, 1489, lv denied 19 NY3d 815
[internal quotation marks omitted]). The Referee found, inter alia,
that the father’s application for equal time with and/or sole custody
of the child was economically motivated and that the mother was more
fit because the father was preoccupied with child support, placed his
needs above the child’s needs, and was not as stable. When the father
moved out of the marital residence, he agreed to certain visitation
time with the child that was established to accommodate his schedule.
The court gave appropriate consideration to that agreement, pursuant
to which the mother was the primary physical custodian (see generally
Martusewicz v Martusewicz, 217 AD2d 926, 926-927, lv denied 88 NY2d
801). We conclude that the Referee’s factual findings are supported
by a sound and substantial basis in the record (see Matter of McLeod v
McLeod, 59 AD3d 1011, 1011).

     Contrary to the father’s further contention, the Referee did not
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                                                         CA 12-01289

abuse his discretion in ordering the father to pay 40% of the child’s
private elementary school tuition (see Fruchter v Fruchter, 288 AD2d
942, 943). A court may award educational expenses “[w]here [it]
determines, having regard for the circumstances of the case and of the
respective parties and in the best interests of the child, and as
justice requires, that the present or future provision of . . .
private . . . education for the child is appropriate” (Domestic
Relations Law § 240 [1-b] [c] [7]; see Francis v Francis, 72 AD3d
1594, 1595). The evidence established that the parties agreed to send
the child to a certain private school rather than the public school
where they resided, and at the time of the trial the child had been in
that school for three years and was thriving. Although the father
testified that he wanted the child to attend the public school in the
district where he now lived, there was no evidence that the child
could attend that school, that it was in her best interests to attend
that school, or that the father was financially unable to provide the
necessary funds for the private school.

     We have considered the remaining contentions of the father and
conclude that they are without merit.




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
