| Matter of Weber v Weber |
| 2012 NY Slip Op 07939 [100 AD3d 1244] |
| November 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of Michael Weber,Respondent-Appellant, v Corey Weber, Appellant-Respondent. (And Another RelatedProceeding.) |
—[*1] Vitanza, DiStefano & Dean, LLP, Norwich (Diane M. DiStefano of counsel), forrespondent-appellant. John M. Scanlon, Binghamton, attorney for the child.
Mercure, J.P. Cross appeals from an order of the Family Court of Chenango County(Sullivan, J.), entered February 3, 2012, which, among other things, granted petitioner'sapplication, in two proceedings pursuant to Family Ct Act article 6, to modify a prior order ofcustody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the married, butseparated, parents of one child (born in 2008). Pursuant to a May 2011 stipulation and order uponconsent, the father had sole custody of the child and the mother was permitted approximately 120days per year of visitation to be supervised by her parents. In September 2011, the fathercommenced this proceeding seeking permission to relocate to Illinois with the child. The mothercross-petitioned for modification of the prior order, requesting joint custody and unsupervisedvisitation. Following a fact-finding hearing, Family Court granted the father [*2]permission to relocate, and awarded the mother joint custody andapproximately 100 days per year of unsupervised visitation in New York, as well as "reasonablevisitation contact" with the child in Illinois. The father was directed to bear the cost oftransporting the child to New York except during the months of July and August. The mothernow appeals, and the father cross-appeals.[FN*]
We affirm. A party seeking to relocate bears the burden of establishing by a preponderance ofthe evidence that the proposed move would be in the child's best interests (see Matter of Feathers v Feathers, 95AD3d 1622, 1623 [2012]; Matter ofWilliams v Williams, 90 AD3d 1343, 1344 [2011]). In determining whether relocationis appropriate, the totality of the circumstances must be considered, including "each parent'sreasons for seeking or opposing the move, the quality of the relationships between the child andthe custodial 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 Tropea v Tropea, 87 NY2d 727, 740-741[1996]). Inasmuch as "[t]he weighing of these various factors requires an evaluation of thetestimony, character and sincerity of all the parties involved" (Eschbach v Eschbach, 56NY2d 167, 173 [1982]), Family Court's credibility determinations are entitled to deference andits decision will be upheld if supported by a sound and substantial basis in the record (see e.g.Matter of Feathers v Feathers, 95 AD3d at 1623).
Here, the father testified that, although the move was not economically necessary at present,he was concerned about his job stability because his employer had recently made multiplelayoffs, restructured the company and changed his position title. He further indicated that he hadinvestigated local jobs within his area of expertise, but found that they would require him toeither spend 25% of his time traveling or take a reduced salary. He sought to move after he wasoffered a job with a salary of $90,000, an approximately 10% increase over his current salary,and he gave detailed testimony regarding the opportunities provided by the new position,including bonus incentives. In addition, the new location offered a reduced cost of living, and thefather would initially live with the paternal grandmother, who—along with the father'ssister—would provide childcare at no cost for the child, further reducing the father'sexpenses. The father, who formerly had sole custody of the child and was primarily responsiblefor child-care arrangements and financial support of the child, also described future educationalopportunities for the child in Illinois and his plan to use the savings in child-care and living coststo enroll the child in preschool. Although the move would distance the child from his maternalextended family in New York and result in reduced visitation with the mother, he would beraised in close proximity to his cousins, in addition to receiving care from the paternalgrandmother and father's sister.
In contrast, while the record demonstrates that the mother and the maternal grandparents alsohave a close, affectionate bond with the child, the mother has struggled with a generalized [*3]anxiety disorder and alcohol abuse, which led to the requirementthat her visits with the child be supervised by the maternal grandparents and detracted from thequality of her relationship with the child. For example, the mother has been less involved in thechild's care—she has never interacted with the child's daycare personnel because she didnot feel comfortable doing so, and admitted that on week nights she left the child at her parents'house in order to go home and take care of her dogs. Moreover, although the maternalgrandparents are an important resource for the child—having supervised visitation andcared for the child overnight and during the day when the mother was working—themother and maternal grandmother had a relationship that was "stormy." It was undisputed, forexample, that the mother called the police for assistance as a result of a confrontation with thematernal grandmother, after which the two did not speak for three weeks. Finally, we note thatFamily Court concluded that the mother had lied under oath regarding her continuation of aromantic relationship with an individual who was not permitted to have contact with the child,and the court attached very little credibility to her testimony.
Given the totality of the circumstances, including the economic enhancement for the childand greater job stability for the father that would result from the move, as well as the child'sopportunity to bond with his paternal extended family while still enjoying regular and meaningfulcontact during long visitation periods with the mother, we conclude that a sound and substantialbasis existed for Family Court's determination that the proposed relocation would be in thechild's best interests (see Matter ofVargas v Dixon, 78 AD3d 1431, 1432-1433 [2010]; Matter of Winston v Gates, 64 AD3d 815, 817-819 [2009]; Matter of Winn v Cutting, 39 AD3d1000, 1001-1002 [2007]; cf. Matterof Munson v Fanning, 84 AD3d 1483, 1484-1485 [2011]).
Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The father has advanced noarguments in support of his cross appeal and seeks only affirmance of Family Court's order.Therefore, the cross appeal is deemed abandoned (see Matter of Hirsch v Schwartz, 93 AD3d 1114, 1115 n 2 [2012]).