| Mathie v Mathie |
| 2009 NY Slip Op 06124 [65 AD3d 527] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Lilian Mathie, Appellant, v Douglas Mathie,Respondent. |
—[*1] Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, LakeSuccess, N.Y. (Steven J. Eisman, Mitchell H. Levitin, Michael E. Ratner, and Samuel Ferrara ofcounsel), for respondent. William A. Cadel, Westbury, N.Y., attorney for the child.
In an action, inter alia, to set aside a stipulation of settlement which was incorporated but notmerged into the parties' judgment of divorce, the plaintiff appeals from an order of the SupremeCourt, Nassau County (Marber, J.), dated September 26, 2008, which, after a hearing, denied herapplication to relocate from Merrick, New York, to Marlboro, New Jersey, with the parties'minor child.
Ordered that on the Court's own motion, the notice of appeal is deemed to be an applicationfor leave to appeal, and leave to appeal is granted (see CPLR 5701 [a] [2]; [c]); and it isfurther,
Ordered that the order is reversed, on the facts and in the exercise of discretion, withoutcosts or disbursements, the plaintiff's application to relocate from Merrick, New York, toMarlboro, New Jersey, with the parties' minor child is granted, and the matter is remitted to theSupreme Court, Nassau County, for further proceedings in accordance herewith; and it is further,
Ordered that pending further order of the Supreme Court, Nassau County, the defendantshall have visitation on alternate weekends from Friday at 7:00 p.m. until Sunday at 7:00 p.m., orother times as the parties may agree, with the plaintiff transporting the child to the paternalgrandparents' home in Bellmore, New York, for drop-off and pick-up, or as the parties mayotherwise agree; and it is further,[*2]
Ordered that pending further order of the Supreme Court,Nassau County, the defendant shall have a summer vacation visitation period commencing onWednesday August 12, 2009 at 7:00 p.m. and ending on Sunday August 23, 2009 at 7:00 p.m., oras otherwise agreed to by the parties; the plaintiff shall drop off and pick up the child at thebeginning and end of the summer vacation visitation at the paternal grandparents' home inBellmore, New York; alternate weekend visitation, as herein above provided, shall resume onFriday September 11, 2009 at 7:00 p.m.
The parties were married in 1996 and had a son Ryan, born in 1998. The partiessubsequently divorced in 2005. In settling the issues in their divorce action, the parties enteredinto a stipulation of settlement which, inter alia, provided for joint legal custody of Ryan, withphysical custody to the plaintiff and visitation to the defendant. The stipulation of settlement alsocontained a provision that the plaintiff had to reside in Nassau County or Suffolk County so longas the defendant resided in one of those counties.
A visitation schedule was annexed to the stipulation of settlement. The visitation scheduleprovided for, at a minimum, alternate weekends, except in October and November, during whichmonths visitation was to occur every Sunday to accommodate the defendant's hunting seasonschedule. The parties expressly agreed that the schedule could be modified and made "moreformal" at the request of either of them. While the visitation schedule provided for alternateweekend visitation, the defendant only had additional visitation every Christmas Day, as well asthe days before and after it, and Easter Sunday and alternating Thanksgiving Day, July 4thholiday, and New Year's Day. Notably, the defendant agreed to a stipulation that did not providevisitation during any three-day weekends, school recesses, or the summer beyond his alternatingweekend schedule. Notwithstanding the visitation schedule, the defendant attended most ofRyan's little league games and most of Ryan's soccer games, and allegedly tried to attend schoolactivities and conferences.
As a result of the defendant not regularly seeing or communicating with Ryan in 2005,Ryan's school work deteriorated and he became depressed. The parties met and agreed that Ryanwould see a therapist. The parties alternated bringing Ryan to the therapist on Thursday eveningsfor about four months. In addition, the defendant started to see Ryan on Monday evenings aswell as on Friday evenings when he did not have scheduled visitation on that weekend. By thesummer of 2006, most Monday visits with Ryan had been cancelled by the defendant.
In 2006 the plaintiff remarried and informed the defendant that she wished to move withRyan to live with her new husband in Marlboro, New Jersey. The defendant objected, citing thestipulation of settlement. The plaintiff commenced this action to set aside the stipulation ofsettlement on the grounds that it was unconscionable and unenforceable, and to allow her torelocate to New Jersey with Ryan. The defendant answered the complaint and interposed acounterclaim for an award of an attorney's fee. Significantly, the defendant did not seek custodyof Ryan as an alternative to the plaintiff's relocation application.
The Supreme Court, after a hearing, denied the plaintiff's application to relocate. Theplaintiff appeals.
When parties enter into stipulations resolving custody issues, those stipulations "will not bemodified unless there is a sufficient change in circumstances since the time of the stipulation,and unless modification of the custody arrangement is in the best interests of the children" (Matter of Said v Said, 61 AD3d879, 880 [2009]). One factor to be considered in determining whether a modification basedupon a change in circumstances is appropriate is the impact upon the relationship [*3]of the noncustodial parent and the child (id.).
In determining the merits of a relocation application, the court is called upon to weigh manysignificant competing factors (see Matter of Tropea v Tropea, 87 NY2d 727 [1996]; Matter of Wisloh-Silverman v Dono,39 AD3d 555, 556-557 [2007]; Matter of Confort v Nicolai, 309 AD2d 861, 862[2003]). "While it is sometimes essential for the custodial parent to relocate for economic orpersonal reasons, the law requires that the interests which might justify such a relocation by thecustodial parent be balanced against the noncustodial parent's fundamental human right tofrequent visitation and, most significantly, by the best interests of the child[ ]" (Rybicki vRybicki, 176 AD2d 867, 869-870 [1991] [citation omitted]).
This Court, in Matter ofWisloh-Silverman v Dono (39 AD3d 555 [2007]), held that the factors enumerated inMatter of Tropea v Tropea (87 NY2d at 741) to be considered on an application forrelocation by a custodial parent "include, but are certainly not limited to each parent's reasons forseeking or opposing the move, the quality of the relationships between the child and thecustodial and noncustodial parents, the impact of the move on the quantity and quality of thechild's future contact with the noncustodial parent, the degree to which the custodial parent's andchild's life may be enhanced economically, emotionally and educationally by the move, and thefeasibility of preserving the relationship between the noncustodial parent and the child throughsuitable visitation arrangements" (Matter of Wisloh-Silverman, 39 AD3d at 557; see Aziz v Aziz, 8 AD3d 596[2004]; Amato v Amato, 202 AD2d 458, 459 [1994]).
Upon a review of the record herein, we find that the plaintiff established by a preponderanceof the evidence that the child's best interests would be served by permitting the relocation (see Tornheim v Tornheim, 28 AD3d535, 536 [2006]; Matter of Reilly v Schmidt, 295 AD2d 436 [2002]).
The plaintiff has remarried and reasonably wishes to reside with her new husband and hisfamily (see Daghir v Daghir, 82 AD2d 191, 194-195 [1981], affd 56 NY2d 938[1982]; Hemphill v Hemphill, 169 AD2d 29, 32 [1991]). The defendant objects, arguingthat he will be unable to participate in weekday school and extracurricular activities as his sonwill be significantly farther from his home, which is located on the eastern end of the North Forkof Long Island, 79 miles from where the plaintiff and Ryan currently reside and where the partieslast resided together.
Based upon the evidence and the forensic psychiatrist's report, both the plaintiff and thedefendant share equally strong relationships with their son. As evidenced by the forensicpsychiatrist's report, Ryan favors the move to New Jersey so long as he continues to spend thesame amount of time with the defendant.
The current living arrangement, as directed by the Supreme Court, is untenable. Under thestatus quo, the plaintiff and Ryan reside in Merrick during the week. The plaintiff's new husbandspends a night or two each week in Merrick. When there is no scheduled visitation with thedefendant, the plaintiff and Ryan live in New Jersey. If allowed to continue as presently ordered,Ryan will have three homes and no real sense of permanency in any of them. While travelingbetween Merrick and the defendant's home in Greenport is difficult, that is the norm establishedby the parties. Although adding the travel from the plaintiff's new husband's home in NewJersey, 59 miles, is an additional burden on Ryan, it is more consistent with his best interest thanmaintaining the tripartite, disjointed existence which is the status quo since the plaintiff'sremarriage.
The Supreme Court's neutral forensic psychiatrist opined that Ryan's life would beemotionally enhanced by the relocation because he would be able to spend at least alternating[*4]weekends in the home in which he would reside during theweek. In addition, Ryan would benefit from an extensive family support system in New Jersey,specifically, the plaintiff's husband and his children, the plaintiff's brother-in-law and hischildren, and the plaintiff's cousin and her children.
While the loss of weekday contact with the defendant is neither trivial nor insignificant(see Matter of Wisloh-Silverman v Dono, 39 AD3d at 557), a visitation schedule couldbe devised that would allow for the continuation of the meaningful relationship between thedefendant and his son (see Matter of Tropea v Tropea, 87 NY2d at 742; Matter ofWisloh-Silverman v Dono, 39 AD3d at 557; Thomas v Thomas, 271 AD2d 726, 727[2000]). Notably, the plaintiff has proposed a liberal visitation schedule. Such proposal wouldsubstantially expand the defendant's visitation under the current stipulation, to includealternating school recesses and long weekends as well as summer vacations. Indeed, the amountof quality time the defendant would spend with Ryan would actually increase notwithstandingthe loss of the weekday evening visits (see Matter of Winston v Gates, 64 AD3d 815,817-819 [3d Dept 2009]). It would also require the plaintiff to drive Ryan to and from LongIsland to facilitate the visitation with the defendant and cause the defendant no additional travelburden (see Blundell v Blundell, 150 AD2d 321, 323-324 [1989] [where this Court heldthat relocation to New Hampshire from New York would not curtail the visitation rights of thenoncustodial parent when the custodial parent offered to drive the children to a midway point topromote visitation]; see also Hemphill v Hemphill, 169 AD2d 29 [1991] [the husband'sapplication for custody or to enjoin the wife's relocation to England, where her new husband wasreassigned, was denied]). Under these circumstances, the Supreme Court should have granted theplaintiff's application to relocate from Merrick, New York, to Marlboro, New Jersey, with theparties' child.
Therefore, we remit the matter to the Supreme Court, Nassau County, for furtherproceedings to establish a postrelocation visitation schedule (see Matter of Wisloh-Silvermanv Dono, 39 AD3d at 557; Aziz v Aziz, 8 AD3d at 597). In so doing, we are notunmindful of the cost of visitation which the defendant would bear if any visitation were to takeplace in New Jersey. Thus, on remittal, the Supreme Court also should consider the allocation ofsuch cost or modification of child support as an element of the modification of the stipulation ofsettlement (see Martinez v Konczewski, 85 AD2d 717 [1981]). Rivera, J.P., Florio,Dickerson and Austin, JJ., concur.