Matter of Wofford v Marquardt

Matter of Wofford v Marquardt 2013 NY Slip Op 01417 Decided on March 6, 2013 Appellate Division, Second Department 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.

Decided on March 6, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
RUTH C. BALKIN
THOMAS A. DICKERSON
SYLVIA HINDS-RADIX, JJ.
2012-01769
(Docket Nos. V-24843-09/10A, V-24843-09/11B)

[*1]In the Matter of Christopher Wofford, respondent,

v

Tatiana Marquardt, appellant. Alan Smilowitz, West Hempstead, N.Y., for appellant. Christopher Wofford, New York, N.Y., respondent pro se.




Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter of counsel),
attorney for the child.


DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Katz, J.), dated January 24, 2012, which, after a hearing, denied her petition to modify a prior order of the same court (Sheares, J.), dated December 10, 2009, entered upon a stipulation of the parties, awarding her sole custody of the child, so as to approve her relocation with the child to California.

ORDERED that the order dated January 24, 2012, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the mother's petition is granted, and the matter is remitted to the Family Court, Kings County, for further proceedings to establish an appropriate liberal visitation schedule for the father.

The disposition of a petition for authorization to relocate with a minor child rests upon a determination of the best interests of the child (see Matter of Tropea v Tropea, 87 NY2d 727, 741). In reaching such determinations, our authority is as broad as that of the hearing court, and "we would be seriously remiss if, simply in deference to the finding of the hearing court, we allowed a relocation determination to stand where it lacks a sound and substantial basis in the record" (Matter of Jennings v Yillah-Chow, 84 AD3d 1376, 1377).

In this case, the mother established that the subject child's best interests would be served by approving her relocation from Brooklyn to California. Accordingly, we reverse the order appealed from, grant the mother's petition to modify a prior order of the Family Court so as to approve her relocation with the child to California, and remit the matter to the Family Court, Kings County, for further proceedings to establish an appropriate liberal visitation schedule for the father.
SKELOS, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

[*2]
2012-01769 DECISION & ORDER ON MOTION
In the Matter of Christopher Wofford, respondent,
v Tatiana Marquardt, appellant.
(Docket Nos. V-24843-09/10A, V-24843-09/11B)

Motion by the attorney for the child on an appeal from an order of the Family Court, Kings County, dated January 24, 2012, to strike stated portions of the respondent's brief on the ground that it refers to matter dehors the record. By decision and order on motion of this Court dated December 13, 2012, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition and in relation thereto, and upon the argument of the appeal, it is,

ORDERED that the motion is granted, and those portions of the respondent's brief that are the subject of the motion are deemed stricken and have not been considered in the determination of the appeal.
SKELOS, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court