| Rose v Buck |
| 2013 NY Slip Op 00971 [103 AD3d 957] |
| February 14, 2013 |
| Appellate Division, Third Department |
| Rachel A. Rose, Formerly Known as Rachel A. Bailey,Appellant, v Ethan Buck, Respondent. |
—[*1] O'Connell and Aronowitz, Albany (Richard H. Weiskopf of counsel), for respondent. Cynthia Feathers, Glens Falls, attorney for the child.
Spain, J. Appeal from an order of the Supreme Court (Tomlinson, J.), enteredSeptember 15, 2011 in Montgomery County, which, among other things, deniedplaintiff's motion to modify the parties' judgment of divorce.
Plaintiff (hereinafter the mother) and defendant (hereinafter the father) were marriedin 2006, had a daughter in November 2007 and separated in April 2010. The partiesstipulated to joint custody with the mother having primary physical custody and thefather having weekly parenting time. The stipulation was incorporated into a judgment ofdivorce entered in December 2010. The mother was married in March 2011 to RandyRose, a resident of Kentucky who she met in March 2010 while he was on a year-longtemporary construction supervisor assignment at her company, and they were expectingtheir first child in October 2011. Upon her remarriage, the mother moved to modify thejudgment of divorce to allow her to relocate with the child to Kentucky to live in her newfamily unit with Rose. The father strenuously objected and cross-moved for sole custody.After a hearing, Supreme Court denied all motions finding, in a comprehensive andwell-reasoned decision, that relocation was not in the child's best interests. The motherappeals.[*2]
As the party seeking to relocate, the mother borethe burden of establishing by a preponderance of the credible evidence that the proposedrelocation would be in the child's best interests (see Matter of Kirshy-Stallworth v Chapman, 90 AD3d1189, 1190 [2011]; Matterof Munson v Fanning, 84 AD3d 1483, 1484 [2011]; Matter of Sofranko v Stefan,80 AD3d 814, 815 [2011]). "Among the factors to be considered in determiningwhether relocation is in the child's best interest are each parent's reasons for seeking oropposing the move, the quality of the relationships between the child and the custodialand noncustodial parents, the impact of the move on the quantity and quality of thechild's future contact with the [non-moving] parent, the degree to which the [moving]parent's and child's life may be enhanced economically, emotionally and educationally bythe move, and the feasibility of preserving the relationship between the [non-moving]parent and child through suitable visitation arrangements" (Matter of Sniffen v Weygant,81 AD3d 1054, 1055 [2011] [internal quotation marks and citations omitted],appeals dismissed 16 NY3d 886 [2011], 17 NY3d 884 [2011]; see Matter ofTropea v Tropea, 87 NY2d 727, 740-741 [1996]; Matter of Hissam v Mancini,80 AD3d 802, 803 [2011], lv dismissed and denied 16 NY3d 870 [2011]; Matter of Solomon v Long, 68AD3d 1467, 1469 [2009]). The principles enunciated in Tropea apply evenwhere, as here, the parties have joint custody (see Thompson v Smith, 277 AD2d520, 521 [2000]). Given Supreme Court's unique ability to view the witnesses andevaluate their "testimony, character and sincerity" (Eschbach v Eschbach, 56NY2d 167, 173 [1982]), that court was "in the best position to make factual findings andcredibility determinations [and] its decision will not be disturbed if it is supported by asound and substantial basis in the record" (Matter of Pizzo v Pizzo, 94 AD3d 1351, 1352 [2012]). Thecourt's credibility and factual determinations are amply supported in the record on appeal(see id.; DeLorenzo vDeLorenzo, 81 AD3d 1110, 1111 [2011], lv dismissed 16 NY3d 888[2011]).
It is apparent from the record that the child has two able and devoted parents withwhom she has loving relationships in which she has been nurtured and thrived, and thatthere are factors which weigh in favor of and against relocation, making Supreme Court'sdetermination a difficult one (see Matter of Scheffey-Hohle v Durfee, 90 AD3d 1423,1424-1425 [2011], appeal dismissed 19 NY3d 876 [2012]). Indeed, at thehearing, both parents, ages 27 (the mother) and 29 (the father), acknowledged the goodparenting of, and the child's close relationship with, the other.
Since the parties' separation, the father has enjoyed significant parenting time,initially every weekend and then, pursuant to the parties' stipulation, on a two-weekschedule in which the child was with him 6 out of every 14 days, almost half of the time.The father, who is not married and has no other children, lives with his parents in theirample five-acre farmhouse in the Town of Canajoharie, Montgomery County. He isemployed full time as a union mason, earning an annual salary of approximately $49,000;he consistently exercises all of his parenting time and is actively engaged in caring forthe child's needs. The father continued the child part time in the daycare she wasattending, where the transfer of the child usually occurred. The father has consistentlyfulfilled his obligations to pay child support and his share of daycare expenses, healthinsurance and uncovered medical expenses. At the time of the 2011 hearing, the mothermaintained an apartment in the City of Gloversville, Fulton County, a location she didnot disclose to the father for a period of time. She had been terminated from heremployment and then relocated to Kentucky to be with her husband, apparently takingthe child with her and [*3]returning weekly to facilitatethe father's parenting time.[FN*]
The mother's reasons for requesting to relocate the child are genuine, to raise thechild in her new family unit. Rose owns a small townhouse in Stanton, Kentucky inwhich they planned to live until they build a new, larger home on a nearby 150-acrehorse farm in Compton, Kentucky which they jointly own. Rose, who is 30 years themother's senior, is an established, successful construction project manager in Kentuckywith two profitable side businesses at which the mother planned to work part time athome, allowing her to be home with her children. Rose had, in February 2011, secured afull-time position as a senior project manager in Lexington, Kentucky at an annual salaryof $120,000. By all accounts, Rose has a wonderful and supportive nearby extendedfamily in Kentucky consisting of adult children and young grandchildren, who are aregular part of his active lifestyle and some of whom have formed close relationshipswith the child, as has he, during her extended stays in Kentucky. He testified credibly thathe would promote and facilitate the child's visits and relationship with the father as hehad done for another stepchild. The mother, who has an Associate's degree, worked as anadministrative assistant for about a year until her January 2011 termination and, prior tothat, as a paralegal; she essentially stopped looking for work in January 2011 upon beingterminated and learning of her pregnancy, having consulted only one Internet careerwebsite. She testified that there was little work available to her in the Fulton County areasince the downturn of the economy and that, if she were denied permission to relocate,she was unsure what she would do and would probably have to look for work in a moreactive area such as the City of Albany.
The father opposed the move because it would deprive him, his parents and extendedfamily and friends of their close involvement and regular weekly, nearly equal time withthe child. The mother, cognizant that the child was approaching school age, proposedthat the father have the child for extensive periods in the summer, school breaks andholidays and during her return visits to New York; the father would have phone andSkype contact and she would assist his visits or relocation to Kentucky. However, thedistance, 700-800 miles, is prohibitive, particularly for a young child, requiring an11-hour (or more) one-way car ride or a six-hour door-to-door plane trip (withconnections, as there is no direct flight), with travel time, making weekend or short tripsimpractical. The father desired that the child remain in the New York area where she hasalways lived and has extensive family and friends on both parents' sides. Indeed, thecourt found no evidence that his opposition was motivated by "a hurtful purpose,"instead finding that he acted with "heartfelt honesty." The father also opposed anyparallel relocation to Kentucky given the absence by him (or the mother) of any relativesor friends in that state.
The record fully supports the conclusion that the father is significantly involved inthe child's life, that she benefits a great deal from that relationship, and that the proposedmove would have a significant, deleterious impact on the quality and quantity of herfuture contact with him (seeMatter of Feathers v Feathers, 95 AD3d 1622, 1623-1624 [2012]; Matter ofScheffey-Hohle v Durfee, 90 AD3d at 1427; Matter of Williams v Williams, 90 AD3d 1343, 1345[2011]; Matter of Munson v Fanning, 84 AD3d at 1485; Matter of Solomon vLong, 68 AD3d at 1468-1470). To be sure, the fact that under the mother's relocationproposal the father may ultimately [*4]have"approximately the same number of total hours of visitation each year does not changethe fact that the father will be deprived of regular and meaningful access to his child and,more to the point, that she no longer will benefit from his consistent presence in her life"(Matter of Scheffey-Hohle v Durfee, 90 AD3d at 1427).
Finally, the mother did not establish that the child's life would be enhanced"economically, emotionally and educationally" by the move (Matter of Tropea vTropea, 87 NY2d at 740-741). Supreme Court found that, while the mother's movewould improve her economic outlook, thus benefitting the child, there was no economicnecessity for the move, given the mother's lack of efforts to find suitable employment inNew York and failure to consider the feasability of Rose returning to New York. As thecourt concluded, the child's emotional health and stability would not be enhanced by themove, in that it would effectively deprive her of meaningful contact with her "devoted,loving, caring and capable father."
Weighing in favor of relocation are the comfortable lifestyle and economicimprovement awaiting the mother and child in Kentucky, the stability offered by themother's new post-divorce family unit, including the child's new half sibling, the mother'sability to work part time at home, the child's very close relationship with her mother whohas always cared for her and the child's newly formed positive relationships with Roseand his extended family. Heavily weighing against allowing the young child's relocationare the considerable distance involved for which no suitable visitation schedule could bedevised to preserve the child's current close and involved relationship with her father andextended family, the overall detrimental impact of the move on the child's future contactand relationship with her father, a "central concern" (Matter of Tropea v Tropea,87 NY2d at 739), and the loss of a comfortable farm-like childhood home with herfather, a regularly employed, active parent whose exercise of parenting time has beenunwavering. Further, the child, like the father, has no other ties to Kentucky. Moreover,the parties' strained interactions and communication, including during the transfer of thechild, did not afford optimism that interstate travel and visitation would be smooth.
Considering all of the foregoing, Supreme Court's conclusion is fully supported bythe record that "the best interests of [the child] are protected by preserving the benefitsshe receives from the positive interaction of each parent, on a rotating schedule of almostequal parenting time." Thus, we discern no basis upon which to disturb the court'sdetermination, after thoughtful consideration, that the proposed distant relocation wasnot in the child's best interests (see Matter of Feathers v Feathers, 95 AD3d at1623-1624; Matter of Scheffey-Hohle v Durfee, 90 AD3d at 1428-1429;Matter of Munson v Fanning, 84 AD3d at 1484-1485; Matter of Solomon vLong, 68 AD3d at 1469-1470).
Finally, however, we agree with the mother's contention that Supreme Court, in itsorder, should not have—without explanation—limited her to residing inMontgomery or Fulton Counties, which would preclude her move to adjacent or nearbycounties even if such move did not impact upon the existing custody arrangement. Thejudgment governing custody did not preclude such a local move and no request wasmade by the father for such a restriction. Accordingly, we modify the order to providethat the mother may not, without court approval or the father's written permission,relocate her primary residence with the child more than 50 miles from the father's currentresidence in Montgomery County.
Mercure, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is modified,on the law, without costs, by ordering that plaintiff cannot move more than 50 miles fromdefendant's current address without court approval or defendant's written permission and,as so modified, affirmed.
Footnote *: The mother's counseladvised the Court at oral argument that the mother presently lives with her children in theCity of Amsterdam, Montgomery County where the child is enrolled in school.