Calendar Date: May 30, 2017
Hinman, Howard & Kattell, LLP, East Greenbush (Linda B.
Johnson of counsel), for appellant.
R. Corradini, Elmira, for respondent.
Doyle Gee, Big Flats, attorney for the child.
Before: McCarthy, J.P., Egan Jr., Lynch, Rose and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Chemung County
(Tarantelli, J.), entered December 2, 2015, which, among
other things, partially dismissed petitioner's
application, in a proceeding pursuant to Family Ct Act
article 6, to modify a prior order of visitation.
(hereinafter the mother) and respondent (hereinafter the
father) are the divorced parents of a daughter (born in
2005). Pursuant to a 2008 voluntary separation and property
settlement agreement (hereinafter the separation agreement),
the mother and the father have joint legal custody of the
daughter, with the mother having sole physical custody and
the father having parenting time . In 2010, the parties
entered into a parenting plan that addressed the father's
parenting time in greater detail, and that plan was
incorporated into a consent order issued in November 2010 in
Maryland. In July 2014, in response to the father's
modification petition, the parties agreed on the record to
modify the parenting plan. An order was entered in March 2015
which, among other things, incorporated the 2014 modified
parenting plan, as well as the 2010 parenting plan and
consent order and the separation agreement, to the extent
that they had not been modified. The transcript of the 2014
proceedings, which was incorporated into the 2015 order,
reflects that the parties contemplated the father's
pending reassignment to a duty post in Colorado, and provided
that the father was to bear the round-trip transportation
expenses for the daughter to fly between New York and
Colorado . In April 2015, the mother commenced
this proceeding to modify the 2015 order claiming that, among
other things, the father had missed part of his scheduled
parenting time over the daughter's 2015 spring break,
which constituted a change in circumstances, and that it
would be in the daughter's best interests to reduce the
father's parenting time. After a hearing, Family Court,
among other things, declined to modify the agreed-upon
parenting time arrangements incorporated in the 2015 order,
clarified provisions regarding transportation expenses and
imposed a restriction against the mother's relocation of
the daughter outside of Chemung County. The mother appeals.
the party seeking to modify visitation, it was the
[mother's] burden to first demonstrate a change in
circumstances since the entry of the  order, and if
this burden was met, then demonstrate that modification of
the visitation order is in the child's best
interests" (Matter of Newman v Doolittle, ___
A.D.3d ___, ___, 2017 NY Slip Op 04519, *2 ; see
Matter of William O. v John A., 148 A.D.3d 1258, 1259
, lv denied 29 N.Y.3d 908');">29 N.Y.3d 908 ).
Significantly, the mother filed the present petition within
one year after the parties had, by their agreement on the
record, resolved the issue of the father's parenting
time, among others. A review of the record reflects that this
latest petition was filed shortly after the father,
unexpectedly, was unable to fully participate in his
scheduled 2015 spring break parenting time with the daughter.
To that end, the court credited the father's testimony
that he picked up the daughter from the mother intending to
fly back to Colorado with the daughter the next day, but his
request for leave was denied for the date he needed to return
her from Colorado to the mother. After discussing the matter
with the daughter, the father left her with his parents and
brother in Maryland and returned to Colorado, and later
emailed the mother to advise her that his parents would be
returning the daughter on the agreed-upon day, which they
did. The mother's argument is that the daughter should
have been returned to her when the father was unable to fully
exercise his parenting time and, further, that she did not
give permission for this arrangement. We find these
allegations in the mother's petition - and, indeed, her
testimony - do not demonstrate that the mother met her
initial burden. Importantly, the parties have joint legal
custody and there is nothing in the separation agreement,
parenting plan, consent order or the 2015 order restricting
the father's parenting time in the manner urged by the
mother. There is no restriction against the daughter visiting
or staying with the father's family during his parenting
time and, indeed, the mother testified that she was not
opposed to the daughter spending time with her paternal
relatives and being transported home by her paternal
grandparents. The only mention of the location where
parenting time must occur is in the original separation
agreement, which provided that "[v]isitation shall take
place in a suitable environment of the non-residential
parent's choosing." A review of the record
demonstrates that, other than this isolated incident
complained of by the mother, the father exercised his
parenting time both before and after the spring break in
question and at other permitted times during school breaks
and summer vacation. Consequently, the mother has not
demonstrated that any new developments or changes have
occurred that would justify further intervention by Family
Court, and her "dissatisfaction with the stipulated
order, without more, does not demonstrate a change in
circumstances that would, in turn, warrant a best interests
analysis" (Matter of Elizabeth NN. v Hannah
MM., 148 A.D.3d 1235, 1236 ).
extent that the mother takes issue with Family Court's
clarification of the 2015 order with regard to the
daughter's travel to Pakistan and the parties'
responsibility for certain transportation duties, we note
that the mother sought such clarifications or raised issues
related thereto. In any event, the court, having determined
that the order was ambiguous in certain respects, properly
clarified the parties' respective obligations, and
"it was not necessary that a change in circumstances be
established" (Matter of Barbara L. v Robert M.,
116 A.D.3d 1101, 1103 ; see Matter of Green v
Green, 109 A.D.3d 1027, 1028 ). We discern no
error or abuse of discretion in that clarification.
we find that Family Court erred when it imposed, sua sponte,
a change of domicile restriction, as neither party had
requested this relief or had notice that this issue would be
considered (see Matter of Barbara L. v Robert M.,
125 A.D.3d 1148, 1149 ; Matter of Constantine v
Hopkins, 101 A.D.3d 1190, 1192 ; Matter of
Revet v Revet, 90 A.D.3d 1175, 1176 ).
Accordingly, we modify the order by striking the part thereof
as prohibited the mother from relocating the daughter outside
of Chemung County.
McCarthy, J.P., Egan Jr., Lynch and Rose, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as prohibited petitioner from
relocating with the child outside ...