| Matter of Scheffey-Hohle v Durfee |
| 2011 NY Slip Op 09553 [90 AD3d 1423] |
| December 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Anna Scheffey-Hohle, Respondent, v Travis C.Durfee, Appellant. |
—[*1] Connie F. Miller, Watkins Glen, for respondent. Paul R. Corradini, Elmira, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.),entered August 9, 2010, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarriedparents of a daughter (born in 2000). Although the mother and the father were both in collegewhen the mother became pregnant and they lived some distance apart, the father was present forthe child's birth and thereafter enjoyed significant parenting time with the child pursuant to aninformal agreement between the parties. When the child was three years old, the mother enrolledthe child in preschool—effectively ending the then-shared physical custodyarrangement—and married Steven Hohle (hereinafter the stepfather), with whom shesubsequently had two sons. After the father completed his postgraduate work and relocated toSchuyler County, where the child resided, he sought to resume the shared physical custodyarrangement. By order entered December 21, 2007 upon consent, Family Court awarded theparties joint legal and shared physical custody of the child. By all accounts, this arrangementproved to be eminently workable for the parties and, more to the point, extraordinarily beneficialto the child, who reaped the rewards of having two loving parents actively—andessentially equally—involved in her daily life.[*2]
Thereafter, in January 2010, the mother commenced thisproceeding seeking permission to relocate with the child to Pittsburgh,Pennsylvania—approximately 5½ hours away from Schuyler County and where thestepfather had accepted a new job. Following a lengthy hearing, Family Court granted themother's application, concluding that relocation was in the child's best interest and awarding theparties joint legal custody with primary physical placement to the mother and substantialvisitation to the father. This appeal by the father ensued.[FN1]
Upon reviewing the record, it is apparent that the child is blessed with two skilled anddevoted parents, each of whom clearly has her best interest at heart and each of whom has madevarious sacrifices upon her behalf.[FN2] The child also enjoys a loving relationship with the stepfather and her half siblings, as well aswith the father's live-in girlfriend and her young children, and being surrounded by this caringand supportive family network plainly has enabled the child to thrive. However, these veryblessings, together with the fact that the parents stand upon essentially equal footing with oneanother, made Family Court's decision all the more difficult, as it was faced with the unenviabletask of determining which parent potentially would be deprived of regular and meaningful accessto the child.[FN3] It is clear that Family Court struggled with this dilemma—as have we—but despitethe court's well-reasoned decision, we are obliged to reverse, deny the mother's relocation requestand dismiss the underlying petition.
As the party seeking to relocate, the mother bore the burden of establishing by apreponderance of the credible evidence that the proposed relocation would be in the child's bestinterest (see Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1190 [2011]; Matter of Munson v Fanning, 84 AD3d1483, 1484 [2011]; Matter ofSofranko v Stefan, 80 AD3d 814, 815 [2011]). "Among the factors to be considered indetermining whether relocation is in the child's best interest are each parent's reasons for seekingor opposing the move, the quality of the relationships between the child and the custodial andnoncustodial parents, the impact of the move on the quantity and quality of the child's futurecontact with the noncustodial parent, the degree to which the custodial parent's and child's lifemay be enhanced economically, emotionally and educationally by the move, and the feasibility ofpreserving the relationship between the noncustodial parent and child through suitable visitationarrangements" (Matter of Sniffen vWeygant, 81 AD3d 1054, 1055 [2011] [internal quotation [*3]marks and citations omitted], appeals dismissed 16 NY3d886 [2011], 17 NY3d 884 [2011]; seeMatter of Hissam v Mancini, 80 AD3d 802, 803 [2011], lv dismissed and denied16 NY3d 870 [2011]; Matter ofSolomon v Long, 68 AD3d 1467, 1469 [2009]).
Here, the stated impetus for the requested relocation was the stepfather's acceptance of a newjob in Pennsylvania. Previously, the stepfather operated a guided navigation system used in oiland natural gas exploration—a position he had held for 15 years and in which he wasengaged at the time he and the mother married. This position required him to travel extensivelyand resulted in him periodically being away from home for six-to-eight-week stints—factsthat admittedly were known to the mother at the time of the marriage. When his "rig" was idle,the stepfather received his base salary of $40,000 per year; for each day that he was on site,however, he received "field pay," enabling him to earn between $110,000 and $120,000 per year.
In January 2010, the stepfather received an offer to work in a supervisory position in hisemployer's regional office in Pittsburgh. Although this position reduced the stepfather's annualsalary to $90,000, he testified that his new job represented both a steady and predictable sourceof income and an overall improvement in his—and his family's—quality oflife.[FN4] Notably, at the time the stepfather accepted the position, he had not been laid off, and there isnothing in the record to suggest that he was in any real danger of losing his job. Rather, it appearsthat the stepfather accepted the new position based upon his fear that he might eventually, atsome theoretical point in the future, lose his job—despite the fact that he had not been laidoff even once during the course of his 15 years with his employer.
To be sure, the stepfather cannot be faulted for wanting to travel less, but the relocationeffectively shifts the travel burden from the stepfather to the child and her biological father.Further, while we recognize that the demands posed by the mother's marriage, as well as herdesire to keep her new family intact, are factors to be considered in evaluating the relocationrequest (see Matter of Vargas vDixon, 78 AD3d 1431, 1432 [2010]), the balance of the Tropea factors (seeMatter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]), in our view, do not militate infavor of the child's relocation.
As to the quality of the child's relationship with her respective parents, it is clear that themother and the father dote on her and that she, in turn, has a close and loving relationship witheach of them. Although there is an argument to be made—despite the nearly equal periodsof physical custody—that the mother has been the child's primary caregiver, the father'sdevotion to the child is, as Family Court aptly observed, virtually unparalleled. The father movedtwice—first leaving his journalism career in Albany County to pursue a Master's degree inTompkins County, where he would be closer to the child, and then relocating to SchuylerCounty, where he eventually obtained a teaching position in the child's school district. Moreover,when the mother and the stepfather pursued a business opportunity that could have resulted in thechild having to change schools, the father undertook to purchase property within the district sothat the child [*4]could remain in the same school.[FN5] The record further reflects—and no one disputes—that the father, who coaches thechild's soccer team, is significantly involved in her life and that she, in turn, benefits greatly fromthis relationship (see Matter of Munson v Fanning, 84 AD3d at 1485; Matter ofSolomon v Long, 68 AD3d at 1468-1469; compare Matter of Sniffen v Weygant, 81AD3d at 1056 [father visited with children only sporadically, often failed to pay child supportand did not attend school functions or otherwise meaningfully participate in their lives];Matter of Hissam v Mancini, 80 AD3d at 804 [mother exercised poor parental judgmentand engaged in conduct that was emotionally and psychologically harmful to the child];Matter of Vargas v Dixon, 78 AD3d at 1432-1433 [father failed to regularly exercisevisitation and had limited involvement in child's education]; Matter of Sara ZZ. v Matthew A., 77 AD3d 1059, 1060-1061[2010] [father engaged in domestic violence against the mother, had limited supervised visitationwith the child and rarely attended his school functions or athletic events]).
For these reasons, there can be no serious question that the child's relocation wouldsignificantly impact upon the quality and quantity of her future contact with the father (seeMatter of Munson v Fanning, 84 AD3d at 1485; Matter of Mallory v Jackson, 51 AD3d 1088, 1090 [2008], lvdenied 11 NY3d 705 [2008]; Matterof Paul v Pagnillo, 13 AD3d 971, 972-973 [2004]). Although the mother admittedlyexpressed a willingness to be generous with visitation, the mere fact that the father arguablymight, under a proposal proffered by the mother at the hearing, wind up with approximately thesame number of total hours of visitation each year does not change the fact that the father will bedeprived of regular and meaningful access to his child and, more to the point, that she no longerwill benefit from his consistent presence in her life.
We reach a similar conclusion regarding the feasibility of maintaining the father/daughterrelationship through a long-distance visitation arrangement. Although the visitation schedulefashioned by Family Court admittedly was extensive, we are troubled by, among other things, thefeasibility of compelling the child to spend a total of 10 to 11 hours in the car every otherweekend traveling between Pennsylvania and Schuyler County—particularly in view of thechild's desire to participate in soccer and dance. Such a schedule, in our view, not onlysignificantly disrupts the relationship that the child and the father previously enjoyed but, further,impacts upon the child's ability to regularly engage in everyday social and extracurricularactivities with her friends and classmates.
Finally, we are not persuaded that the mother met her burden of establishing that relocationwould substantially enhance the child's economic, emotional or educational well-being. Again,while we do not begrudge the stepfather's desire to improve his professional lot in life andacknowledge that having him home on a more regular basis would no doubt benefit the family asa whole, the fact remains that his new position entailed a substantial pay cut (see Matter ofSofranko v Stefan, 80 AD3d at 816; Matter of Mallory v Jackson, 51 AD3d at 1089),which tends to undermine any assertion that the move was motivated by economicnecessity.[FN6] Further, [*5]as should be evident from the foregoing discussion,we are hard pressed to conclude that the move would enhance the child's overall emotionaldevelopment and well-being, as she was—by all accounts—flourishing in herthen-existing environment. Finally, even accepting that it might be easier for the mother topursue a postgraduate degree in a more metropolitan area, there is nothing in the record tosuggest that the child's educational opportunities will be substantially enhanced by the move.Noticeably absent from the testimony adduced at the hearing was any evidence that the schools inthe Pittsburgh area were superior to those in Schuyler County, where—according to herteacher and parents—the child was a gifted student (see Matter of Kirshy-Stallworth vChapman, 2011 NY Slip Op 08867, *2-3; Matter of Mehaffy v Mehaffy, 23 AD3d 935, 937 [2005], lvdismissed 6 NY3d 807 [2006]; Matter of Paul v Pagnillo, 13 AD3d at 973).
In short, while there indeed are certain factors that militate in favor of relocation, we cannotsay—based upon our review of the record as a whole and after giving due consideration toall of the relevant concerns—that the mother met her burden of establishing that relocationwould be in the child's best interest (see Matter of Munson v Fanning, 84 AD3d at1484-1485; Matter of Solomon v Long, 68 AD3d at 1469-1470). Accordingly, we nowreverse Family Court's order, dismiss the mother's petition and direct that Family Court's orderentered December 21, 2007 remain in full force and effect.
In reaching this result, we are mindful of the fact that the child is in the middle of the schoolyear and that the mother, who went through with the move only after receiving permission fromFamily Court to do so, is now faced with the prospect of either relinquishing physical custody ofthe child to the father or relocating all (or part) of the remainder of her family back to New York.For this reason, we hereby stay entry of this Court's order for 30 days in order to afford theparties an opportunity to devise an appropriate plan for the child's return to New York.
Spain, J.P., and Garry, J., concur.
Lahtinen, J. (dissenting). Respectfully, we dissent. Relocation cases often involveparticularly vexing issues (see Matter of Tropea v Tropea, 87 NY2d 727, 736 [1996][characterizing relocation cases as presenting "some of the knottiest and most disturbingproblems" faced by courts]). This is such a case; on that point, all are in agreement.
Family Court heard the testimony of the parties as well as the other witnesses. It observedand listened to the child while conducting an in camera interview. Recognizing the importance ofviewing witnesses to the evaluation of their "testimony, character and sincerity" when weighingfactors pertinent to a child's best interest (Eschbach v Eschbach, 56 NY2d 167, 173[1982]), we typically do not disturb the determination of the trial court in a case of this nature solong as its determination is supported by a sound and substantial basis in the record (see Matter of Vargas v Dixon, 78AD3d 1431, 1433 [2010]; Matter ofWinn v Cutting, 39 AD3d 1000, 1001 [2007]; Matter of Leach v Santiago, 20 AD3d 715, 716 [2005], lvdenied 6 NY3d 702 [2005]; Matter of Grathwol v Grathwol, 285 AD2d 957, 958[2001]). In a detailed, well-reasoned decision that thoroughly discussed and weighed relevantfactors, Family Court determined that relocation was in the best interest of the child. In our view,there is a sound and substantial basis in the record supporting Family Court's determination.Accordingly, we would [*6]affirm.
Rose, J., concurs. Ordered that the order is reversed, on the law, without costs, petitiondismissed and the order entered December 21, 2007 shall remain in full force and effect subjectto the 30-day stay imposed herein.
Footnote 1: The father's subsequentapplication for a stay pending appeal was denied by a Justice of this Court.
Footnote 2: For example, the mother waiteduntil the end of the school year to bring the instant proceeding—so as to avoid pulling thechild out of school mid-semester—and did not relocate to Pennsylvania until she hadFamily Court's permission to do so. And, as will be discussed in greater detail, the father changedcareers and relocated more than once in order to maintain his relationship with his daughter.
Footnote 3: We say "potentially" because themother did not rule out remaining in New York if permission to relocate was denied. Similarly,although hoping to avoid forfeiting his budding teaching career and tenure track position, thefather did not foreclose the possibility of pursuing certification and obtaining employment inPennsylvania.
Footnote 4: Instead of working 12-hourdays, seven days a week and being away from home for extended periods of time, the stepfatherwould be working a standard 40-hour week, thereby enabling him to, among other things, behome at night with the mother and the children.
Footnote 5: When the business opportunityfell through, the father was contractually obligated to go through with the purchase, and he nowoperates the property as a bed and breakfast.
Footnote 6: We note in passing that themother and the stepfather made only limited inquiries into obtaining alternative employment inand around Schuyler County.