In an action, inter alia, to set aside a stipulation of settlement which was incorporated but not merged into the parties' judgment of divorce, the plaintiff appeals from an order of the Supreme Court, Nassau County (Marber, J.), dated September 26, 2008, which, after a hearing, denied her application to relocate from Merrick, New York, to Marlboro, New Jersey, with the parties' minor child.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON and LEONARD B. AUSTIN, JJ.
ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[a], [c]); and it is further,
ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the plaintiff's application to relocate from Merrick, New York, to Marlboro, New Jersey, with the parties' minor child is granted, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith; and it is further,
ORDERED that pending further order of the Supreme Court, Nassau County, the defendant shall have visitation on alternate weekends from Friday at 7:00 P.M. until Sunday at 7:00 P.M., or other times as the parties may agree, with the plaintiff transporting the child to the paternal grandparents' home in Bellmore, New York, for drop-off and pick-up, or as the parties may otherwise agree; and it is further,
ORDERED that pending further order of the Supreme Court, Nassau County, the defendant shall have a summer vacation visitation period commencing on Wednesday August 12, 2009, at 7:00 P.M. and ending on Sunday August 23, 2009, at 7:00 P.M., or as otherwise agreed to by the parties; the plaintiff shall drop-off and pick-up the child at the beginning and end of the summer vacation visitation at the paternal grandparents' home in Bellmore, New York; alternate weekend visitation, as herein above provided, shall resume on Friday September 11, 2009, at 7:00 P.M.
The parties were married in 1996 and had a son Ryan, born in 1998. The parties subsequently divorced in 2005. In settling the issues in their divorce action, the parties entered into a stipulation of settlement which, inter alia, provided for joint legal custody of Ryan, with physical custody to the plaintiff and visitation to the defendant. The stipulation of settlement also contained a provision that the plaintiff had to reside in Nassau County or Suffolk County so long as the defendant resided in one of those counties.
A visitation schedule was annexed to the stipulation of settlement. The visitation schedule provided for, at a minimum, alternate weekends, except in October and November, during which months visitation was to occur every Sunday to accommodate the defendant's hunting season schedule. The parties expressly agreed that the schedule could be modified and made "more formal" at the request of either of them. While the visitation schedule provided for alternate weekend visitation, the defendant only had additional visitation every Christmas Day, as well as the days before and after it, and Easter Sunday and alternating Thanksgiving Day, July 4th holiday, and New Year's Day. Notably, the defendant agreed to a stipulation that did not provide visitation during any three-day weekends, school recesses, or the summer beyond his alternating weekend schedule. Notwithstanding the visitation schedule, the defendant attended most of Ryan's little league games and most of Ryan's soccer games, and allegedly tried to attend school activities and conferences.
As a result of the defendant not regularly seeing or communicating with Ryan in 2005, Ryan's school work deteriorated and he became depressed. The parties met and agreed that Ryan would see a therapist. The parties alternated bringing Ryan to the therapist on Thursday evenings for about four months. In addition, the defendant started to see Ryan on Monday evenings as well as on Friday evenings when he did not have scheduled visitation on that weekend. By the summer of 2006, most Monday visits with Ryan had been cancelled by the defendant.
In 2006 the plaintiff remarried and informed the defendant that she wished to move with Ryan to live with her new husband in Marlboro, New Jersey. The defendant objected, citing the stipulation of settlement. The plaintiff commenced this action to set aside the stipulation of settlement on the grounds that it was unconscionable and unenforceable, and to allow her to relocate to New Jersey with Ryan. The defendant answered the complaint and interposed a counterclaim for an award of an ...