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Rose v. Buck

Supreme Court of New York, Third Department

February 14, 2013

RACHEL A. ROSE, Formerly Known as RACHEL A. BAILEY, Formerly Known as RACHEL A. BUCK, Appellant,
ETHAN BUCK, Respondent.

Calendar Date: January 7, 2013

Frank M. Putorti Jr., PC, Schenectady (Andrew J. Healey of counsel), for appellant.

O'Connell and Aronowitz, Albany (Richard H. Weiskopf of counsel), for respondent.

Cynthia Feathers, Glens Falls, attorney for the child.

Before: Mercure, J.P., Spain, Stein and McCarthy, JJ.


Spain, J.

Appeal from an order of the Supreme Court (Tomlinson, J.), entered September 15, 2011 in Montgomery County, which, among other things, denied plaintiff's motion to modify the parties' judgment of divorce.

Plaintiff (hereinafter the mother) and defendant (hereinafter the father) were married in 2006, had a daughter in November 2007 and separated in April 2010. The parties stipulated to joint custody with the mother having primary physical custody and the father having weekly parenting time. The stipulation was incorporated into a judgment of divorce entered in December 2010. The mother was married in March 2011 to Randy Rose, a resident of Kentucky who she met in March 2010 while he was on a year-long temporary construction supervisor assignment at her company, and they were expecting their first child in October 2011. Upon her remarriage, the mother moved to modify the judgment of divorce to allow her to relocate with the child to Kentucky to live in her new family unit with Rose. The father strenuously objected and cross-moved for sole custody. After a hearing, Supreme Court denied all motions finding, in a comprehensive and well-reasoned decision, that relocation was not in the child's best interests. The mother appeals.

As the party seeking to relocate, the mother bore the burden of establishing by a preponderance of the credible evidence that the proposed relocation would be in the child's best interests (see Matter of Kirshy-Stallworth v Chapman, 90 A.D.3d 1189, 1190 [2011]; Matter of Munson v Fanning, 84 A.D.3d 1483, 1484 [2011]; Matter of Sofranko v Stefan, 80 A.D.3d 814, 815 [2011]). "Among the factors to be considered in determining whether relocation is in the child's best interest are each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the [non-moving] parent, the degree to which the [moving] parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the [non-moving] parent and child through suitable visitation arrangements" (Matter of Sniffen v Weygant, 81 A.D.3d 1054, 1055 [2011] [internal quotation marks and citations omitted], appeals dismissed 16 N.Y.3d 886 [2011], 17 N.Y.3d 884 [2011]; see Matter of Tropea v Tropea, 87 N.Y.2d 727, 740-741 [1996]; Matter of Hissam v Mancini, 80 A.D.3d 802, 803 [2011], lv dismissed and denied 16 N.Y.3d 870 [2011]; Matter of Solomon v Long, 68 A.D.3d 1467, 1469 [2009]). The principles enunciated in Tropea apply even where, as here, the parties have joint custody (see Thompson v Smith, 277 A.D.2d 520, 521 [2000]). Given Supreme Court's unique ability to view the witnesses and evaluate their "testimony, character and sincerity" (Eschbach v Eschbach, 56 N.Y.2d 167, 173 [1982]), that court was "in the best position to make factual findings and credibility determinations [and] its decision will not be disturbed if it is supported by a sound and substantial basis in the record" (Matter of Pizzo v Pizzo, 94 A.D.3d 1351, 1352 [2012]). The court's credibility and factual determinations are amply supported in the record on appeal (see id.; DeLorenzo v DeLorenzo, 81 A.D.3d 1110, 1111 [2011], lv dismissed 16 N.Y.3d 888 [2011]).

It is apparent from the record that the child has two able and devoted parents with whom she has loving relationships in which she has been nurtured and thrived, and that there are factors which weigh in favor of and against relocation, making Supreme Court's determination a difficult one (see Matter of Scheffey-Hohle v Durfee, 90 A.D.3d 1423, 1424-1425 [2011], appeal dismissed 19 N.Y.3d 876 [2012]). Indeed, at the hearing, both parents, ages 27 (the mother) and 29 (the father), acknowledged the good parenting of, and the child's close relationship with, the other.

Since the parties' separation, the father has enjoyed significant parenting time, initially every weekend and then, pursuant to the parties' stipulation, on a two-week schedule in which the child was with him 6 out of every 14 days, almost half of the time. The father, who is not married and has no other children, lives with his parents in their ample five-acre farmhouse in the Town of Canajoharie, Montgomery County. He is employed full time as a union mason, earning an annual salary of approximately $49, 000; he consistently exercises all of his parenting time and is actively engaged in caring for the child's needs. The father continued the child part time in the daycare she was attending, where the transfer of the child usually occurred. The father has consistently fulfilled his obligations to pay child support and his share of daycare expenses, health insurance and uncovered medical expenses. At the time of the 2011 hearing, the mother maintained an apartment in the City of Gloversville, Fulton County, a location she did not disclose to the father for a period of time. She had been terminated from her employment and then relocated to Kentucky to be with her husband, apparently taking the child with her and returning weekly to facilitate the father's parenting time. [1]

The mother's reasons for requesting to relocate the child are genuine, to raise the child in her new family unit. Rose owns a small townhouse in Stanton, Kentucky in which they planned to live until they build a new, larger home on a nearby 150-acre horse farm in Compton, Kentucky which they jointly own. Rose, who is 30 years the mother's senior, is an established, successful construction project manager in Kentucky with two profitable side businesses at which the mother planned to work part time at home, allowing her to be home with her children. Rose had, in February 2011, secured a full-time position as a senior project manager in Lexington, Kentucky at an annual salary of $120, 000. By all accounts, Rose has a wonderful and supportive nearby extended family in Kentucky consisting of adult children and young grandchildren, who are a regular part of his active lifestyle and some of whom have formed close relationships with the child, as has he, during her extended stays in Kentucky. He testified credibly that he would promote and facilitate the child's visits and relationship with the father as he had done for another stepchild. The mother, who has an Associate's degree, worked as an administrative assistant for about a year until her January 2011 termination and, prior to that, as a paralegal; she essentially stopped looking for work in January 2011 upon being terminated and learning of her pregnancy, having consulted only one Internet career website. She testified that there was little work available to her in the Fulton County area since the downturn of the economy and that, if she were denied permission to relocate, she was unsure what she would do and would probably have to look for work in a more active area such as the City of Albany.

The father opposed the move because it would deprive him, his parents and extended family and friends of their close involvement and regular weekly, nearly equal time with the child. The mother, cognizant that the child was approaching school age, proposed that the father have the child for extensive periods in the summer, school breaks and holidays and during her return visits to New York; the father would have phone and Skype contact and she would assist his visits or relocation to Kentucky. However, the distance, 700-800 miles, is prohibitive, particularly for a young child, requiring an 11-hour (or more) one-way car ride or a six-hour door-to-door plane trip (with connections, as there is no direct flight), with travel time, making weekend or short trips impractical. The father desired that the child remain in the New York area where she has always lived and has extensive family and friends on both parents' sides. Indeed, the court found no evidence that his opposition was motivated by "a hurtful purpose, " instead finding that he acted with "heartfelt honesty." The father also opposed any parallel relocation to Kentucky given the absence by him (or the mother) of any relatives or friends in that state.

The record fully supports the conclusion that the father is significantly involved in the child's life, that she benefits a great deal from that relationship, and that the proposed move would have a significant, deleterious impact on the quality and quantity of her future contact with him (see Matter of Feathers v Feathers, 95 A.D.3d 1622, 1623-1624 [2012]; Matter of Scheffey-Houle v Durfee, 90 A.D.3d at 1427; Matter of Williams v Williams, 90 A.D.3d 1343, 1345 [2011]; Matter of Munson v Fanning, 84 A.D.3d at 1485; Matter of Solomon v Long, 68 A.D.3d at 1468-1470). To be sure, the fact that under the mother's relocation proposal the father may ultimately have "approximately the same number of total hours of visitation each year does not change the fact that the father will be deprived of ...

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