| Schwartz v Schwartz |
| 2010 NY Slip Op 01472 [70 AD3d 923] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Michele Schwartz, Appellant, v Jeffrey Schwartz,Respondent. |
—[*1] Joseph J. Mainiero, New York, N.Y. (Anthony A. Hilton of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment dated October 3,2006, the mother appeals from an order of the Supreme Court, Kings County (Prus, J.), datedAugust 14, 2009, which granted the father's motion to enjoin her from relocating with the parties'children from Brooklyn to Staten Island.
Ordered that the order is affirmed, with costs.
The parties were married in 1995 and have two children, now 8 and 10 years of age. Theparties divorced in 2006, and both continued to reside in Brooklyn Heights, where the childrenattended school, and where both parties worked.
In accordance with their separation agreement, the parties had joint custody of the children.The children were with the father from 5:00 p.m. every Sunday until Tuesday, when he eitherdropped them off in the morning at school or camp, or at noon at the mother's home and, onalternate weekends, from 5:00 p.m. on Friday until Tuesday morning or noon. Since the childrenwere with the father every Monday, he dropped them off and picked them up from school onthose days. The children were also with the father for approximately one half of their holidaysand school recesses. At all other times, the children resided with the mother.
The mother became engaged in 2009, and her then-fiancÉ, whom she married after theSupreme Court issued the order appealed from, and who has three children, lived in New Jersey.Approximately two months prior to the filing of the motion at issue here, the court denied themother's motion to move with the parties' children to East Brunswick, New Jersey, in order tolive with her fiancÉ and to be closer to a university in Pennsylvania, where she wasoffered employment. Soon after, without seeking or obtaining the approval of the court, themother made a nonrefundable deposit on a house located at the southernmost point of StatenIsland, to share with her daughters, her current husband, and the husband's three children, whofrequently visited him. The mother allegedly turned down the job offer in Pennsylvania andintended to keep her position in Brooklyn Heights.[*2]
The father moved to enjoin the mother from relocating toStaten Island with the children and from removing the children from their current school. Afteroral argument, the court determined that the mother did not meet her burden of demonstratingthat the relocation was in the best interests of the children. The mother appeals and we affirm.
Although the mother did not move the court for permission to relocate, the court heard oralargument on the issue, and determined that her request constituted a request for relocation withinthe meaning of Matter of Tropea v Tropea (87 NY2d 727 [1996]). After weighing theappropriate factors set forth in Tropea, the court correctly determined that the motherfailed to establish, by a preponderance of the evidence, that the children's best interests would beserved by permitting the relocation (see Tornheim v Tornheim, 28 AD3d 535, 536[2006]; Matter of Reilly v Schmidt, 295 AD2d 436 [2002]). While each request forrelocation must be decided on its own merits, the factors to be considered "include, but arecertainly not limited to each parent's reasons for seeking or opposing the move, the quality of therelationships between the child and the custodial and noncustodial parents, the impact of themove on the 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 the relationshipbetween the noncustodial parent and child through suitable visitation arrangements" (Matterof Tropea v Tropea, 87 NY2d at 740-741; see Aziz v Aziz, 8 AD3d 596, 597[2004]).
Here, it was established that the father had frequent contact with the children, includingsubstantial time during the week. It is of no moment that the proposed relocation was withinNew York City, or that it was only approximately 20 miles from the mother's current residence.The court is charged with determining each case based on the totality of the circumstances. Here,the difficulties for both the father and the children in maintaining their current quality andquantity of contact while traveling between Brooklyn Heights and the southernmost point onStaten Island, during morning and evening rush hours in New York City traffic, is apparent.
Moreover, as the father persuasively argued, such onerous travel arrangements would likelyaffect the children's willingness to visit him as frequently as they currently do. Thus, theSupreme Court providently granted the father's motion to enjoin the mother from relocating withthe parties' children, where, as here, she was unable to demonstrate that such a relocation was inthe children's best interests.
The parties' remaining contentions are without merit. Florio, J.P., Angiolillo, Belen and Hall,JJ., concur.