| Matter of Pizzo v Pizzo |
| 2012 NY Slip Op 03242 [94 AD3d 1351] |
| April 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Leah Pizzo, Appellant, v Marc R. Pizzo,Respondent. (And Another Related Proceeding.) |
—[*1] Jacobowitz & Gubits, L.L.P., Walden (Kara J. Cavallo of counsel), for respondent. Frances S. Clemente, Callicoon, attorney for the children.
Rose, J. Appeal from an order of the Family Court of Sullivan County (Ledina, J.), enteredDecember 27, 2010, which, among other things, dismissed petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) were married in1994 and are the parents of two children, a daughter born in 2000 and a son born in 2004. InAugust 2007, the mother left the marital residence in Sullivan County with the children andrelocated to Monroe County to be with her paramour. In February 2008, the parties stipulated toan order that was later incorporated but not merged in their 2009 judgment of divorce, providingfor joint legal custody with the father having primary physical placement and the mother havingvisitation. The stipulated order also provided that, in the event the mother returned to SullivanCounty, the parties would alternate physical custody on a weekly basis. The mother and herparamour did return to Sullivan County in July 2008 and the parties shared alternate physicalcustody until June 2010, when the mother again relocated to Monroe County with her paramour,along with their two children (born in 2008 and 2009). The mother then filed a petition seekingphysical custody of the children she had with the father and permission to relocate them, allegingthat she was unable to find employment in the Sullivan County area and the father was in a car[*2]accident and ticketed for driving while intoxicated on his wayto pick up the children in May 2010. The father cross-petitioned seeking an order that the mothermaintain her residence in Sullivan County or that he be awarded permanent legal and physicalcustody of the children. Following both a hearing and a Lincoln hearing, Family Courtreviewed all of the relevant issues and factors in a thorough decision dismissing the mother'spetition, maintaining joint custody and awarding physical custody to the father, with visitation tothe mother. The mother appeals, and we affirm.
As the parent seeking to relocate, the mother was required to demonstrate by apreponderance of the credible evidence that it was in the children's best interests to relocate withher (see Matter of Adams v Bracci,91 AD3d 1046, 1046-1047 [2012], lv denied — NY3d —, 2012 NYSlip Op 68579 [Mar. 29, 2012]; Matterof Scheffey-Hohle v Durfee, 90 AD3d 1423, 1425 [2011]; Matter of Sofranko v Stefan, 80 AD3d814, 815 [2011]). Relevant factors for the court's consideration include the parties'motivation for seeking or opposing the move, the impact of the move on the children'srelationship with the noncustodial parent, the feasibility of suitable visitation and the degree towhich the move will enhance the children's lives (see Matter of Tropea v Tropea, 87NY2d 727, 740, 741 [1996]). Since Family Court is in the best position to make factual findingsand credibility determinations, its decision will not be disturbed if it is supported by a sound andsubstantial basis in the record (seeMatter of Kirshy-Stallworth v Chapman, 90 AD3d 1189, 1190 [2011]; Matter ofSofranko v Stefan, 80 AD3d at 815; Matter of Vargas v Dixon, 78 AD3d 1431, 1433 [2010]).
Initially, the mother challenges Family Court's determination that she had decided to relocatewith her new family and, as a result, made only a perfunctory attempt to find employment in theSullivan County area. The mother had been working as a one-on-one student aide, and shetestified that there was no position available for her after the school year ended. Her paramourwas working at a Sullivan County restaurant, but accepted a job as a head chef in Monroe Countyin May 2010 that allegedly paid twice the salary. According to the mother's own testimony, herdecision to relocate was "pretty much a done deal" at that point in time. Although the mothersubmitted evidence of her job search limited to school districts in the Sullivan County area fromMarch 2010 to June 2010, the evidence revealed that she made extensive efforts to find a job inMonroe County during the same time period. Despite the mother's claim that she continued tolook for employment in the Sullivan County area even after leaving it, she entered into a yearlease in Monroe County starting July 1, 2010, cancelled an interview at an elementary school inSullivan County in July 2010, yet did not find full-time employment in Monroe County untilSeptember 2010, when she accepted a position at a child-care center instead of a school district.Finding no basis in the record upon which to reject Family Court's credibility and factualdeterminations, we will defer to them (see Matter of Lynch v Gillogly, 82 AD3d 1529, 1531 [2011]; DeLorenzo v DeLorenzo, 81 AD3d1110, 1111 [2011], lv dismissed 16 NY3d 888 [2011]).
The mother also argues that, even though the relevant factors for custody of the childrengenerally weigh equally in each party's favor, the father's May 2010 motor vehicle accident andhis conviction for driving while intoxicated should tip the scales in her favor. Family Court,however, concluded that the conviction was an aberration for which the father accepted fullresponsibility and, when viewed in the context of the totality of circumstances here, including themother's own driving record, it was an insufficient basis on which to determine custody. Thefather submitted evidence that he pleaded guilty to driving while intoxicated against the advice ofhis attorney and took additional steps to obtain a court-ordered ignition interlock device on his[*3]vehicle for monitoring. He also voluntarily enrolled in andcompleted an alcohol counseling and screening program, even though it was not part of hissentence. Although the mother questions the credibility of the father's version of eventssurrounding the accident and she presented conflicting proof, Family Court accepted the father'sevidence and, again, we see no basis to disturb the court's credibility determination.
Based on the totality of the circumstances, including the mother's acknowledgment that thefather is a capable and nurturing parent, and the resulting stability afforded to the children byremaining in the marital residence and their school, we find a sound and substantial basis forFamily Court's determination denying the mother's petition to relocate the children (seeMatter of Kirshy-Stallworth v Chapman, 90 AD3d at 1191-1192; Matter of Munson v Fanning, 84 AD3d1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 AD3d at 815).
Peters, P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.