| Matter of Bracy v Bracy |
| 2014 NY Slip Op 02473 [116 AD3d 1172] |
| April 10, 2014 |
| Appellate Division, Third Department |
| In the Matter of Anthony Bracy, Respondent, v SharonlineBracy, Respondent. Attorney for the Children, Appellant. (And Three Other RelatedProceedings.) |
—[*1] Jane M. Bloom, Monticello, for Anthony Bracy, respondent. Ivy Schildkraut, Monticello, for Sharonline Bracy, respondent.
Garry, J. Appeal from an order of the Family Court of Sullivan County (Meddaugh,J.), entered July 25, 2012, which, among other things, dismissed respondent's application,in four proceedings pursuant to Family Ct Act article 6, to modify a prior order ofvisitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are thedivorced parents of five children (born in 1995, 2000, 2001, 2003, and 2009). Pursuantto a 2010 order entered on consent, the parties share joint legal custody, with the motherhaving primary physical custody and, as is relevant here, the father having parenting timeevery Saturday from 10:00 a.m. to 7:00 p.m. Beginning in November 2011 each parentsought various relief, with both a modification and a violation petition filed by the fatherand two modification petitions filed by the mother. After a combined hearing, FamilyCourt dismissed all of the petitions. The attorney for the children now appeals from thedismissal of the mother's modification petition that sought permission to relocate fromthe Village of Monticello, Sullivan County to the Village of Sleepy Hollow, WestchesterCounty.[*2]
As the party seeking to relocate, the mother borethe burden of establishing by a preponderance of the credible evidence that the proposedmove would be in the children's best interests (see Matter of Michelle V. v Brandon V., 110 AD3d 1319,1321 [2013]; Rose v Buck,103 AD3d 957, 958 [2013]). The determination requires assessing the best interestsof the children, based upon the totality of the circumstances, including but not limited to,"each parent'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 of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; accord Matter of Norback vNorback, 114 AD3d 1036, 1036-1037 [2014]; Matter of Weber v Weber, 100AD3d 1244, 1245 [2012]). As Family Court is in the best position to make factualfindings and credibility determinations, its decision will not be disturbed if it is supportedby a sound and substantial basis in the record (see Matter of Batchelder v BonHotel, 106 AD3d 1395,1396 [2013]; Matter of Pizzo vPizzo, 94 AD3d 1351, 1352 [2012]).
The mother was the only witness to testify in support of her application. Her primaryreason for wanting to move was to be closer to some members of her family, whom sheexpected would provide emotional, spiritual, and financial support. In anticipation of themove, she had rented a home that was substantially smaller than the one in which shewas residing in Monticello; the safety and appropriateness of the surroundingneighborhood was disputed, but as Family Court noted, no photographs were provided toaid in the determination. Further, the mother failed to demonstrate that the familyfinances would be promoted by the move (see Matter of Mallory v Jackson, 51 AD3d 1088, 1089[2008], lv denied 11 NY3d 705 [2008]). Notably, the mother intended tocontinue working at her current job in Monticello for the same pay, but now requiring adaily commute of approximately 1½ hours each way. Although she expected tobegin working from home one or two days per week, this was unsupported by testimonyor other evidence from her employer. The mother further testified that she was willing totravel each Saturday to deliver the children to and return them from visitation with thefather, but failed to reveal why the significant increase in her driving every week wouldnot have a negative impact upon both her finances and time with the children. Hertestimony that family members would help pay bills was wholly unsupported.
Similarly, there was no evidence beyond "hearsay and speculation" to support theclaim that the proposed new school in Westchester would provide advantages over thechildren's current school (Matterof Feathers v Feathers, 95 AD3d 1622, 1624 [2012]; see Matter of Stetson vFeringa, 114 AD3d 1089, 1090-1091 [2014]; Matter of Kirshy-Stallworth vChapman, 90 AD3d 1189, 1191 [2011]). The children have been enrolled intheir current school for virtually their entire lives, and are all involved in extracurricularactivities.[FN*]Neither the mother nor the children have taken a tour of the new school or spoken to anyof its administrators (compareMatter of Cole v Reynolds, 110 AD3d 1273, 1276 [2013]). Further, the fathercurrently attends some of the children's after school activities during the week; suchinvolvement would necessarily be curtailed by the three hour round-trip drive (seeMatter of Feathers v Feathers, 95 AD3d at 1623).[*3]
Although this appeal is brought on behalf of thechildren, and Family Court noted their desire to relocate, this factor is not determinative(see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]). Considering the totalityof the circumstances and the lack of evidence to support the mother's stated wishes, weconclude that a sound and substantial basis existed for Family Court's determinationdenying the proposed relocation (see Matter of Batchelder v BonHotel, 106AD3d at 1397).
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The eldest childattended a different school for one year before the couple settled in Monticello.