| Scott VV. v Joy VV. |
| 2013 NY Slip Op 00967 [103 AD3d 945] |
| February 14, 2013 |
| Appellate Division, Third Department |
| Scott VV., Respondent, v Joy VV.,Appellant. |
—[*1] Matthew C. Hug, Troy, for respondent. Mary Cosgrove Militano, Scotia, attorney for the child.
Peters, P.J. Appeal from an order of the Supreme Court (Hall, J.), entered February22, 2012 in Saratoga County, which, among other things, denied defendant's motion tomodify a prior order of custody and visitation.
Plaintiff (hereinafter the father) and defendant (hereinafter the mother) are theparents of a daughter (born in 2006). Following the parties' separation in June 2010, themother learned that approximately 20 years earlier the father had sexually abused hisdaughter from a previous marriage, and immediately obtained an order preventing anycontact between the father and the child. In February 2011, an order was entered onconsent granting the parties joint legal custody of the child, with the mother havingprimary physical custody and the father having twice-weekly supervised visitation. Theorder also required the father to undergo a sex abuse risk assessment and successfullycomplete sex abuse treatment.
In April 2011, the mother sought permission to relocate to California with the child.Following three days of hearings in June 2011, Supreme Court temporarily permitted therelocation. Subsequent hearings were held in August and September 2011 after whichSupreme Court found, in a detailed and well-reasoned written decision, that relocationwould not be in the child's best interests. The mother appeals.
The mother, as the parent seeking to relocate, had the burden of proving by a [*2]preponderance of the evidence that the proposed movewould be in the child's best interests (see Matter of Shirley v Shirley, 101 AD3d 1391, 1392[2012]; Matter of Pizzo vPizzo, 94 AD3d 1351, 1352 [2012]). "Relevant factors to consider include 'eachparent's reasons for seeking or opposing the move, the quality of the relationshipsbetween the child and the custodial and noncustodial parents, the impact of the move onthe quantity and quality of the child's future contact with the noncustodial parent, thedegree to which the custodial parent's and child's life may be enhanced economically,emotionally and educationally by the move, and the feasibility of preserving therelationship between the noncustodial parent and child through suitable visitationarrangements' " (Matter ofFeathers v Feathers, 95 AD3d 1622, 1623 [2012], quoting Matter of Tropeav Tropea, 87 NY2d 727, 740-741 [1996]; see Matter of Scheffey-Hohle v Durfee, 90 AD3d 1423,1425 [2011], appeal dismissed 19 NY3d 876 [2012]). As Supreme Court was inthe best position to make factual findings and credibility determinations, itsdetermination of the relocation issue will not be disturbed unless it lacks a sound andsubstantial basis in the record (see Matter of Weber v Weber, 100 AD3d 1244, 1245-1246[2012]; Matter of Pizzo v Pizzo, 94 AD3d at 1352; Matter of Hissam v Mancini,80 AD3d 802, 804 [2011], lv dismissed and denied 16 NY3d 870 [2011]).
The record reveals that the mother's new boyfriend, who she met while he wastemporarily in New York, was the impetus behind the requested relocation (see Matter of Williams vWilliams, 90 AD3d 1343, 1344 [2011]; Matter of Leach v Santiago, 20 AD3d 715, 716 [2005],lv denied 6 NY3d 702 [2005]). Moreover, the proposed move provides nomeaningful economic enhancement. The mother, who worked as a patient carecoordinator for a prestigious plastic surgery practice in Albany County, accepted an offerfor a similar job in Beverly Hills, California. While her new position increased herannual salary by approximately $12,000 and, unlike her prior employment, offeredopportunity for promotion, the testimony presented following the temporary moveestablished that living expenses, transportation costs and the child's private school tuitionwere much higher than anticipated, with the increase in costs nearly subsuming hermodest salary increase. Significantly, the mother is dependent on her boyfriend for alarge portion of her living expenses,[FN*]but she offered no suggestion as to how she would cover those costs should theirrelationship terminate. Although the mother testified that the climate would improve thechild's eczema and sinus issues, no proof was submitted to substantiate her claim that therelocation would result in any actual health benefit. Nor does the record demonstrate thatthe educational opportunities offered by the private school that the child planned onattending in California are superior to those offered by the school she attended prior tothe move.
Moreover, while the father interacted with the child through Internet (Skype) andtelephone conversations following the temporary relocation and the mother was willingto offer him periods of visitation during the summer and holidays, there was considerableevidence—including a detailed psychological evaluation—reflecting thatthe long distance relocation would be highly detrimental to the parent-child relationship.Indeed, the negative impact on this relationship, which all parties agreed was ameaningful and important part of the child's life, was a primary reason that SupremeCourt denied the application for relocation. Prior to the mother's move to California, thefather received supervised visitation with the child twice a week. [*3]Testimony from the supervisors of the visits establishedthat the father always acted appropriately and that the child was very affectionate towardsher father and greatly enjoyed the visits. Jacqueline Bashkoff, a psychologist whoevaluated the parties on two separate occasions, the first in connection with the initialcustody order and the second in connection with this proceeding, likewise testified to thepositive relationship between the father and child and concluded that the proposed movewould "[a]bsolutely" compromise that relationship. The move would also deprive thechild of access to her extended family in the area, including her maternal grandparents,with whom she enjoys a close relationship. Supreme Court also credited evidence that themother engaged in behavior—particularly since the move toCalifornia—that had a harmful effect on the child and tended to undermine therelationship with her father, including attempts to manipulate the child to say negativethings about the father.
Substantial testimony was also presented regarding the steps taken by the father toaddress his past conduct. Bashkoff testified that the father followed everyrecommendation in her initial evaluation "to the tee," including successfully completingsex offender treatment. She explained that, while his behavior was consistent with that ofa "situational" pedophile, he was remorseful and shameful about that past misconductand there was no evidence to suggest that he had ever sexually abused this child. JeffreyFox, the psychologist who extensively evaluated the father throughout the course of morethan 20 weekly sessions of sex offender relapse treatment, opined that the father posed alow risk to reoffend. Considering the totality of the circumstances, we find a sound andsubstantial basis for Supreme Court's determination that permitting the child to relocateto California would not be in her best interests (see Matter of Feathers vFeathers, 95 AD3d at 1623-1624; Matter of Pizzo v Pizzo, 94 AD3d at 1353;Matter of Scheffey-Hohle v Durfee, 90 AD3d at 1425-1429; Matter of Munson v Fanning,84 AD3d 1483, 1484-1485 [2011]; Matter of Mallory v Jackson, 51 AD3d 1088, 1090 [2008],lv denied 11 NY3d 705 [2008]).
Supreme Court's denial of the mother's motion, following the close of all proof, tostay the relocation proceeding based upon her claim that the child had recently disclosedthat the father had sexually abused her in the past causes us concern. While thisallegation, if proven, would not necessarily be determinative of the relocation issue(cf. Matter of Karen F., 208 AD2d 994, 996 [1994]; see generally Matter ofTropea v Tropea, 87 NY2d 727, 740-741 [1996], supra), it would certainlybe afforded weight in determining what is in the child's best interests (see e.g. Matter of Lori DD. vShawn EE., 100 AD3d 1305, 1306-1307 [2012]). Notably, however, whilerefusing to consider the claim in the context of the relocation proceeding, Supreme Courtimmediately converted the motion to a petition to modify the father's visitation andscheduled a prompt psychological evaluation of the child. We further note that, as ageneral rule, the decision whether to permit the introduction of evidence after the closeof proof is a matter committed to the sound discretion of the trial court (seeCPLR 4011; Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]; Matter of JuliaBB. [Diana BB.], 42 AD3d 208, 215 [2007], lvs denied 9 NY3d 815 [2007];Shapiro v Shapiro, 151 AD2d 559, 560 [1989]), and the motion here was madeapproximately six weeks after the close of all proof and on the eve of Supreme Court'sdecision on the relocation issue. Given the particular facts and circumstances of this case,we cannot say that the manner in which Supreme Court chose to address the mother'sallegations constituted an improvident exercise of its considerable discretion.
Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: Likewise, the motheracknowledged that she could only afford the child's tuition with the assistance of her95-year-old grandmother.