| Piccinini v Piccinini |
| 2013 NY Slip Op 01252 [103 AD3d 868] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Jose Piccinini, Respondent, v Gabriela Piccinini,Appellant. |
—[*1]
The Penichet Firm, P.C., White Plains, N.Y. (Fred L. Shapiro of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by herbrief, from so much of an order of the Supreme Court, Westchester County (Wood, J.),dated June 18, 2012, as, without a hearing, denied those branches of her motion whichwere for permission to relocate with the parties' children and for an award of counselfees, and granted that branch of the plaintiff's cross motion which was for an award ofcounsel fees.
Ordered that the order is reversed insofar as appealed from, on the law and the facts,with costs, the defendant's motion for permission to relocate with the parties' children isgranted, that branch of the plaintiff's cross motion which was for an award of counselfees is denied, and the matter is remitted to the Supreme Court, Westchester County, for ahearing on that branch of the defendant's motion which was for an award of counsel feesand, thereafter, a new determination of that branch of the defendant's motion.
The parties to this matrimonial action entered into a stipulation of settlementwhereby they agreed to joint legal and residential custody of their five children, andwhich prohibited either party from relocating outside of Westchester County without "theadvance consent of the other, which shall not be unreasonably withheld, or the Order of acourt of competent jurisdiction." Thereafter, the defendant sought to relocate to aresidence in Greenwich, Connecticut. When the plaintiff refused to consent to the move,the defendant sought permission from the court to relocate. The Supreme Court deniedthe defendant's motion without a hearing, and granted that branch of the plaintiff's crossmotion which was for an award of counsel fees.
Contrary to the Supreme Court's determination, the defendant did not violate thestipulation of settlement. Although the defendant signed a lease to rent a residence inGreenwich prior to obtaining the plaintiff's consent or a court order, she sought a courtorder prior to relocating to that residence (see generally Matter of Meccico vMeccico, 76 NY2d 822, 823-824 [1990]; Rosenberger v Rosenberger, 63 AD3d 898, 899 [2009]).
"Relocation may be allowed if the custodial parent demonstrates, by a preponderanceof the evidence, that the proposed move is in the [children's] best interests" (Matter of Steadman v [*2]Roumer, 81 AD3d 653, 654 [2011]; Matter of Retamozzo v Moyer,91 AD3d 957, 957 [2012] [internal quotation marks omitted]). "Although eachcustodial parent's request for relocation must be decided on its own merits, the factors tobe considered include, but are not limited to, each parent's reasons for seeking oropposing the move, the quality of the relationships between the children and each parent,the impact of the move on the quantity and quality of the children's future contact withthe noncustodial parent, the degree to which the lives of the custodial parent and thechildren may be enhanced economically, emotionally, and educationally by the move,and the feasibility of preserving the relationship between the noncustodial parent and thechildren through suitable visitation arrangements" (Matter of Said v Said, 61 AD3d 879, 881 [2009]; seeMatter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]).
The Supreme Court improperly determined that relocation would not be in thechildren's best interest. In that respect, the defendant averred that the residence inGreenwich was 7.5 miles from the former marital residence, and 9.9 miles from theresidence at which the plaintiff planned to reside during his custodial periods with thechildren. The residence in Greenwich was also close to the private school the childrenattend. Moreover, the defendant averred that she had searched for suitable housing inWestchester County, but was unable to find any housing that she could afford. Theplaintiff did not dispute any of these averments, did not claim that the relocation wouldhave any impact whatsoever on his custodial time with the children, and did not offer anyreason at all why the relocation would be contrary to the children's best interest.
Under these circumstances, the Supreme Court possessed adequate relevantinformation to enable it to make an informed and provident determination with respect tothe best interests of the children (see generally Matter of Shira L. [Zindel L.], 100 AD3d 998[2012]), and, instead of denying that branch of the defendant's motion which was forpermission to relocate without a hearing, should have granted that branch of the motion,without a hearing (see Matter ofWisloh-Silverman v Dono, 39 AD3d 555, 556-557 [2007]; Matter of Said vSaid, 61 AD3d at 881; see generally Matter of Tropea v Tropea, 87 NY2d727 [1996]).
Accordingly, we reverse the order, grant that branch of the defendant's motion whichwas for permission to relocate, deny that branch of the plaintiff's cross motion which wasfor an award of counsel fees, and remit the matter to the Supreme Court, WestchesterCounty, for a hearing and, thereafter, a new determination of that branch of thedefendant's motion which was for an award of counsel fees. Mastro, J.P., Skelos,Leventhal and Chambers, JJ., concur.