| Matter of Michelle V. v Brandon V. |
| 2013 NY Slip Op 06923 [110 AD3d 1319] |
| October 24, 2013 |
| Appellate Division, Third Department |
| In the Matter of Michelle V., Appellant, v Brandon V.,Respondent. (And Another Related Proceeding.) |
—[*1] Miller Mayer, LLP, Ithaca (R. James Miller of counsel), for respondent. Pamela B. Bleiwas, Ithaca, attorney for the child.
Spain, J. Appeals (1) from two orders of the Family Court of Tompkins County(Sherman, J.), entered June 22, 2012 and July 10, 2012, which, among other things,dismissed petitioner's application, in two proceedings pursuant to Family Ct Act article 6,to modify a prior order of custody, and (2) from an order of said court, entered August17, 2012, which denied petitioner's motion for reconsideration.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are thedivorced parents of a son, born in July 2010. The parties, who were married in 2009,separated in May 2011. They entered into a joint custody arrangement—withshared decision-making authority—contained in a separation agreement inDecember 2011, with physical placement with the mother and weekly parenting timewith the father, which prohibited relocation of the child without the consent of the otherparent or the court. Their agreement was later incorporated into, but not merged with, theparties' January 2012 judgment of divorce. In February 2012, just a few months aftertheir agreement, the mother received and accepted an offer of employment in NewJersey. After the father denied his consent to allow the mother to relocate with the childfrom the City of Ithaca, Tompkins County to New Jersey, she commenced thisproceeding requesting permission to relocate, to which the father cross-petitioned,objecting to the relocation and [*2]seeking sole custody.Family Court permitted the mother to relocate with the then-18-month-old child on atemporary basis pending disposition of the proceeding, and she moved to East Windsor,New Jersey, approximately 230 miles (4½ hours) from Ithaca in March 2012.However, following a two-day fact-finding hearing in May 2012 at which themother—then a recent law school graduate—appeared pro se, the courtdismissed the mother's application and granted sole custody to the father. Thereafter, themother made a motion to reconsider, which the court denied. The mother nowappeals.[FN*]
The ultimate issue in any custody dispute is which arrangement suits the bestinterests of the child, that is, "it is the rights and needs of the child[ ] that must beaccorded the greatest weight" (Matter of Tropea v Tropea, 87 NY2d 727, 739[1996]). In a relocation case, to determine a child's best interests, the court must considerseveral factors, such as "each parent's reasons for seeking or opposing the move, thequality of the relationships between the child and the [moving] and [nonmoving] parents,the impact of the move on the quantity and quality of the child's future contact with the[nonmoving] parent, the degree to which the [moving] parent's and child's life may beenhanced economically, emotionally and educationally by the move, and the feasibility ofpreserving the relationship between the [non-moving] parent and child through suitablevisitation arrangements" (id. at 740-741; see Matter of Scheffey-Hohle v Durfee, 90 AD3d 1423,1425 [2011], appeal dismissed 19 NY3d 876 [2012]). These factors governing arelocation determination are not an exhaustive list and the court is expected to considerany other relevant factors (seeMatter of Herman v Villafane, 9 AD3d 525, 526-527 [2004]; Thompson vSmith, 277 AD2d 520, 521 [2000]). It is the party seeking to relocate who bears theburden of demonstrating, by a preponderance of the credible evidence, that such a moveis in the child's best interests (see Scott VV. v Joy VV., 103 AD3d 945, 946 [2013],lv denied 21 NY3d 909 [2013]; Matter of Kirshy-Stallworth v Chapman, 90 AD3d 1189,1190 [2011]; DeLorenzo vDeLorenzo, 81 AD3d 1110, 1111 [2011], lv dismissed 16 NY3d 888[2011]). On review, this Court will not disrupt a relocation determination unless it lacks asound and substantial basis in the record (see Rose v Buck, 103 AD3d 957, 958 [2013]; Matter of Feathers v Feathers,95 AD3d 1622, 1623 [2012]). Finally, given Family Court's unique opportunity tohear and assess the testimony, its credibility determinations are accorded great deferenceon appeal (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Pizzo v Pizzo, 94AD3d 1351, 1352 [2012]; Matter of Sofranko v Stefan, 80 AD3d 814, 815 [2011]).
The mother's primary reason for seeking the relocation is that she was reportedlyonly able to find employment in her field in New Jersey. The mother initially attendedlaw school in the midwest and then finished her final year at Cornell University in 2011.In February 2012, the mother was offered and accepted a position as a law clerk for aNew Jersey judge. According to the mother, the full-time clerkship—which wasscheduled to end in September 2013—involves regular daytime hours and she isallowed 14 days of sick time and 14 days of vacation per year. Her salary was set at$43,000 annually.
While the mother testified that she took the only employment offer extended to herand, thus, she had no choice but to relocate, there is little evidence in the recordregarding her job search in the area surrounding the parties' former marital home inIthaca, either before her [*3]clerkship or upon itsanticipated completion. She submitted evidence of her email account, which showedvarious correspondence relating to her search for employment. However, these recordsdid not indicate that any of the jobs she applied for were in the Ithaca area and,furthermore, she could not specifically remember any positions that she had applied forlocally. The father submitted evidence to support his position that the mother's reason forrelocating—that this was her only job offer—was a pretense and that shenever intended to remain in the Ithaca area. He introduced a list that the mother had leftin the marital home after she moved out, which included the following goals: "getting ajob" and "moving out of NY," and he testified that the mother had consistently beentalking about relocating to New Jersey.
The father opposed the relocation mainly because it greatly reduced the amount oftime that he had with the child and because a parallel move by him would not be feasible.He is employed as an assistant professor of mechanical and aerospace engineering atCornell. Initially, he was offered a three-year position; at the expiration of that term, hereceived a one-year extension that was set to expire in June 2013, and he expected to bereappointed for another three-year term as an associate professor. He stated that whiletenure was not guaranteed, he did not want to leave Cornell where he is paid $108,220annually, and that it would be difficult to find a similar position. He presented thetestimony of a colleague in the same department who testified that faculty positions in thefather's field are relatively rare and that there are only a handful of openings in the UnitedStates each year.
As to the father's parenting time, he was granted every other weekend in thetemporary order, which he faithfully exercised. That order required the parties toexchange the child in a central location in Pennsylvania; however, the exchanges werefraught with tension for everyone involved, so the parents altered the arrangement so thatthe father would pick the child up on Friday in New Jersey and the mother would pickhim up on Sunday in Ithaca. Despite this new arrangement, the difficulties continued,and the mother conceded that this arrangement was "not good for" anyone in the family,and that the long drives were exhausting and put the child at risk.
The testimony of both parents reflected that each had a loving relationship with thechild. The mother testified that she had been the child's primary caregiver from thebeginning. The child was born in the summer prior to the mother's third year in lawschool, and she testified that she thereafter took care of him almost all of the time exceptwhen she was studying or in class. During the fall semester, the maternal grandmotherstayed with the family to help care for the child and did so while the father was at workand the mother was involved with her school work. After the grandmother left, theparents hired a nanny to watch the child until he started attending day care in January2011. The mother testified that the child had special dietary needs and that she made thebulk of his food herself, and that she bathed and dressed him daily and potty-trained him.Additionally, she testified that the father did not participate in the child's life, specificallythat he "didn't do anything with us . . . [he] didn't go to parks[, to] birthdayparties[, to] the neighbor['s] to play." She also testified that she took the child to almostall of his doctor appointments and that the father rarely took him.
In contrast, the father testified that, during the spring of 2011, he had attended six ofthe child's eight doctor appointments. The father acknowledged that the mother had spentmore time with the child during the marriage, and that he often did not arrive home until7:00 p.m., but that he spent time with the child before bedtime; he also testified that heoften took the child to day care. Significantly, the mother filed a family offense petitionagainst the father on May 17, 2011, [*4]allegingharassment and attempted assault. As a result, a temporary order of protection was put inplace and the father had to leave the marital dwelling and was not allowed to contact themother or the then-infant child for almost two months, until July 2011, and was notallowed to have overnight visits until August 2011. The father testified that theallegations were false and that the petition was eventually dismissed prior to any hearing.While the mother was the primary caregiver before the parties' separation, the recordsupports Family Court's findings and conclusions that the father demonstrated regularinvolvement in the life of the child before the separation, during a period of time in thechild's infancy in which both parents were heavily committed to their work and schoolwork. Likewise supported are the court's findings as to the father's ability toappropriately care for and nurture the child during his post-separation parenting time,during which he made considerable efforts to improve his skills as a parent.
Both parents testified that they would have to place the child in day care whileworking. The mother testified that the child was currently attending a day care in NewJersey and submitted information about the class size and the facility. The father testifiedthat he would continue placement of the child in the day care program in Ithaca, andsubmitted evidence that New York standards require a lower ratio of children to day-careworkers than required in New Jersey. As to familial connections, the mother testified thather aunt and uncle live near her in New Jersey with their three children, and that the childplays with his cousins and knows his relatives' names. She also testified that there aremany young families in her apartment complex and that the child has played withneighborhood children. Similarly, the father presented testimony about the flexibility ofhis work schedule to accommodate the child's needs when the child is not in day care,and how he arranges play dates with colleagues who have children the same age. Whilehe has no family in the Ithaca area, his parents visit from time to time and are available tohelp out when needed. The mother, on the other hand, conceded that she was at oddswith her mother and siblings.
As to the impact of the relocation on the father-child relationship, there was muchtestimony about the minimal capacity of the parties to communicate and arrangevisitation without court intervention. The record amply supports the conclusion that themother was not entirely willing to include the father in decisions regarding the child. Thefather testified that, prior to her move, in order to avoid interaction with each other, theparties alternated drop off and pick ups at day care as the point of exchange. After themother relocated to New Jersey, there were acrimonious incidents when the child wasexchanged. The father testified that, following the temporary relocation order, uponreturning the child to the mother from a scheduled visit, she screamed at the father; thenext exchange involved a similar confrontation in which the mother berated him andspoke with profanity in front of the child. He further testified that the mother haddemanded last-minute changes to the visitation schedule. The father admitted that theparents have no ability to communicate and that the best form of communication betweenthem is in writing, usually via email. He did acknowledge that the child loves bothparents and that he wanted the mother to have an important role in the child's life and, ifgranted custody, he would value her input and participation.
We reject the mother's assertion that Family Court's findings were inaccurate andshow a bias against her. Her contention is essentially that the court was wrong andunfairly credited the father's testimony over hers; for example, the mother argues that thecourt improperly found that the family offense petition and order ofprotection—issued in the same Family Court that denied the father access to thechild for almost two months—were dismissed. The father testified that they weredismissed, and there is no evidence in the record to the contrary. Similarly, the [*5]mother argues that the court unfairly mischaracterized heras "unduly combative and aggressive" toward the father. There is no question that thiswas a credibility question resolved by the court, which was able to observe the parties'behavior, demeanor and interactions throughout the proceedings. As to the court'sfindings regarding the condition of the former marital home, they are amply supported inthe record, which included numerous photographs of the disheveled condition in whichthe mother left the home when she moved out. The court was justifiably concerned aboutthe mother's ability to provide a safe and clean home for the child and her utter lack ofrespect for the father. The court found that the mother's explanation lacked credibility,and this finding is accorded deference (see Rose v Buck, 103 AD3d at 958).Overall, the court afforded the mother wide latitude as a pro se law school graduate, andour review of the record finds no support for her claim that the court's decision wasaffected by any bias (see Matterof Memole v Memole, 63 AD3d 1324, 1326-1327 [2009]; Matter of Cobane v Cobane,57 AD3d 1320, 1323 [2008], lv denied 12 NY3d 706 [2009]; see also Matter of Youngs vOlsen, 106 AD3d 1161, 1163-1164 [2013]).
The record further supports Family Court's finding that the mother made no genuineeffort to find a job in the Ithaca area and its conclusion that her claimed need to relocatewas not substantiated (compareMatter of Winston v Gates, 64 AD3d 815, 818 [2009]; cf. Matter of Mehaffy vMehaffy, 23 AD3d 935, 937 [2005], lv dismissed 6 NY3d 807 [2006]).The court's conclusion that the father is the parent more willing to encourage arelationship with the other is based in the record, given the evidence that, among otherthings, the mother clearly attempted to thwart and frustrate the father's visitation (see Matter of Adams v Bracci,91 AD3d 1046, 1048-1049 [2012], lv denied 18 NY3d 809 [2012]).Accordingly, we find a sound and substantial basis in the record for the determination todeny the mother's request to relocate the child to New Jersey and to award custody to thefather.
Finally, we find persuasive the mother's contention that requiring her to travel toIthaca to pick up and return the child for all visitation is unduly onerous; even the father,in his testimony, found meeting midway for visitation to be preferable. However, giventhe passage of time and lack of record evidence regarding her current employment andlocation, this matter should be remitted to Family Court for further consideration of theappropriate exchange point for the child, under the parties' current circumstances, unlessthey are able to reach an amicable, equitable arrangement.
Rose, J.P., Garry and Egan Jr., JJ., concur. Ordered the orders entered June 22, 2012and July 10, 2012 are modified, on the facts, without costs, by reversing so much thereofas requires petitioner to drive to and from the City of Ithaca, Tompkins County for heralternate weekend visitation; matter remitted to the Family Court of Tompkins Countyfor further proceedings not inconsistent with this Court's decision and, pending saidproceedings, the visitation terms of said orders shall remain in effect on a temporarybasis; and, as so modified, affirmed. Ordered that the order entered August 17, 2012 isaffirmed, without costs.
Footnote *: Although the motherfiled a notice of appeal from the order denying reconsideration, she has made noarguments in her brief with respect thereto.