Matter of S.F. v G.F.

[*1] Matter of S.F. v G.F. 2009 NY Slip Op 52682(U) [26 Misc 3d 1207(A)] Decided on December 23, 2009 Family Court, New York County Sattler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2009
Family Court, New York County

In the Matter of a Custody/Visitation Proceeding under Article 6 of the Family Court Act, S.F., Petitioner,

against

G.F., Respondent.



V-15616-09/09A

Lori S. Sattler, J.

Petitioner S.F. (hereinafter "Mother"), commenced this proceeding pursuant to Article 6 of the Family Court Act. She seeks to modify the parties' Colorado Decree of Dissolution dated December 8, 2006 (hereinafter "Decree") to permit her to relocate from Manhattan to Scarsdale with the parties' daughter, A.F. ("A"), born on January 25, 2005. Respondent G.F. (hereinafter "Father") opposes the petition and cross-petitions to enforce the Decree. A trial was conducted on June 4, 2009, July 23, 24, 27 and 28, 2009, as well as September 8, 14 and 15, 2009.

This matter presents interesting issues with respect to the determination of a request to relocate, especially in light of the short distance of the proposed move and the fact that the Mother had previously been granted permission to relocate from Colorado to Manhattan with A. The Mother contends that the law is clear and favors a "modest" move of only twenty miles. She claims that there are economic and lifestyle benefits which support the move and that the Father will have increased time with the child during weekends and vacations. The Father points to the quality of his parenting time with A. He asserts that if the Mother is permitted to relocate, he will be reduced to a "weekend dad" and will be marginalized in the child's life. He specifically points to the fact that the Mother has already relocated once with A from Colorado to New York.

Findings of Fact

The parties met in New York and moved to Denver, Colorado after their engagement in May 2003. They were married on January 17, 2004 and A was born approximately one year later. The Father filed for divorce on May 20, 2005. Thereafter, the Mother sought to relocate to New [*2]Jersey/New York. In Findings of Fact and Conclusions of Law dated August 22, 2006 (hereinafter "Findings"), the Hon. Juanita Rice of the Colorado District Court granted the Mother's request to relocate. The Mother moved with A at the end of August 2006 when she was 20 months old. Three months later, in or about November 2006, the Father moved from Colorado to New York to be closer to A. The parties' marriage was dissolved by Decree of the Colorado Court dated December 8, 2006 (hereinafter "Decree").

The parties both testified and the Colorado Findings support that they moved several times within Colorado generally at the Mother's request. Both parties acknowledge that there were issues between the Mother and the paternal grandmother. After moving to Denver in May of 2003, the Mother suggested that the parties look into relocating to Los Angeles, California. Ultimately, they moved from Denver to Boulder in August 2003. The Father indicated that the parties started to build a life in Boulder and that he was happy there. Despite his reservations, he honored the Mother's request to move back to Denver after she learned that she was pregnant. The parties' purchased a home in a suburb of Denver in April 2004 for $1,200,000. A month or so after A was born, in early 2005, the Mother stated to the Father that she wanted to move back to the east coast. Thereafter, the Father filed for divorce.

In the Colorado divorce proceeding, the Mother requested permission to move to New Jersey where she grew up and where her family still resides. She also indicated that her ultimate goal was to move to Manhattan. She detailed a plan where she would live in New Jersey with her family and where she had a job offer. It would appear that Mother was less than candid with the Colorado Court as to the time frame for her move. Despite her representations to the Court, the Mother moved to New Jersey with A at the end of August 2006 and then only a few weeks later, in September 2006, she moved A again from New Jersey to Manhattan.

After the Father moved from Denver to Manhattan, the parties' negotiated a partial separation agreement that set forth their respective parenting time with A, which was executed on December 6, 2006 (hereinafter "Parenting Agreement") and was incorporated into the Decree. The Parenting Agreement provides that the Father is to have 3 days each week with A and that the Mother is to have 4 days. The Father's time includes weekday overnights from Monday to Wednesday and weekend parenting time from either Friday to Saturday or Saturday to Sunday. Thus, Father has 6 days out of every 14 days and Mother has 8. The Parenting Agreement conforms to the recommendations of the Colorado Court.

The Mother remarried in August 2007 and on November 5, 2008, she and her husband had a son named Benjamin. The Mother currently lives with her husband, A and Benjamin in a three bedroom apartment on the Upper East Side. Since his relocation to New York, the Father has purchased an apartment in Manhattan within walking distance to A's school and the Mother's apartment. He also owns a home in Fairfield, Connecticut to which he takes A on some weekends.

The parties' child, A, is now almost 5 years old. She was admitted to a private school in Manhattan, namely the Town School. She is currently in her second year at the Town School. The parties acknowledged that A could remain at the Town School until the eighth grade. Records from the school indicate that A is adjusted and doing well there.

The testimony adduced at trial shows that the Mother and her husband began to discuss moving from Manhattan as early as August 2007, only one year after the Mother's first relocation with A from Colorado. Indeed, it would appear that the Mother had no intention of following the [*3]Parenting Agreement, which had been recommended by the Colorado court, for the long term. In October 2007, ten months after the parties signed the Parenting Agreement, the Mother and her husband went to contract on a home in Rye, New York. While she may have raised the idea of moving to the suburbs with the Father in earlier emails, the Mother never informed him of her specific plan to reside in Rye with their daughter until after the deposit on the home had been made.

The Father, through the assistance of counsel, opposed the move. Ultimately, the Mother and her husband backed out of the deal and lost their deposit. Thereafter, the Mother and her husband began their continued efforts to move out of the city with little focus in their search. They looked at Short Hills and Summit, New Jersey and then later they looked at homes in Irvington and Chappaqua in Westchester County. The Mother also contacted the Father about a possible move to Washington, D.C. The Mother's actual relocation plan appears to have been a moving target. It was only at the commencement of trial that she declared that her new plan was to relocate to Scarsdale. The Court notes that neither party has family that live in Westchester County.

The Mother's reasons for relocation are undefined. She contends that she and her husband have suffered a financial decline. The joint income tax returns for the Mother and her husband were introduced into evidence at trial and show that they had an adjusted gross income of $623,118 in 2007 which rose to $1,122,757 in 2008 due to an early payment of a bonus that was to be paid in 2009 in the amount of approximately $338,000. Thus, in reality, the Mother and her husband had adjusted gross income of approximately $784,000 in 2008. If the bonus that had been paid in 2008 were paid when it was supposed to have been made in January 2009, the Mother and her husband would have had income of approximately $873,000 this year (not including Mother's income). Thus, after reviewing the tax returns over the past three years, it is apparent that the Mother and her husband have had a fairly stable, if not increasing, income level even when one considers that the Mother has indicated that she will earn $37,000 this year from work that she did last year. She states that she has not made any placements this year. In prior years the Mother claimed that she had earned between $90,000-$140,000.

The Mother further contends that A will benefit from certain lifestyle changes that a move to Scarsdale would afford her. The Mother testified that she lives in a thirteen hundred square foot, three bedroom rental, which is not comfortable or ideal for her family. She asserts that her family will benefit from the extra space provided by a home in the suburbs. She would like A to live in house with a backyard with trees and grass and in a community with a town pool. The Mother acknowledged that her current apartment building has a children's playroom and is adjacent to a park, which also contains a playground and a swimming pool.

The Father opposes the move. He points to the Mother's propensity to move and the fact that she has already once asked to relocate with A and was granted that relief in Colorado. He contends that he followed them, leaving his family behind in Colorado so that he could be a continued and significant presence in A's life. He asserts that he has now established himself in Manhattan. He has created a life in which he is actively involved in A's weekly activities. In addition to his other business ventures, the Father works part-time at the Dalton School. The Father believes that if he were reduced to a weekend/holiday parent that he would be missing the most important part of A's life; her daily routine, growth and development.

Both parties testified that the Father has a good relationship with A. At present, the Father has A on Mondays through Wednesday and one weekend night. He testified that he frequently saw [*4]A on days that she was with her Mother. It is undisputed that the parents had enjoyed a flexible schedule so that the Father could spend time with A on days that the child was in her mother's care. That arrangement, however, changed in February 2009 when the Mother indicated that she no longer wanted the Father to be present on her days with A. While the Mother had previously mentioned seeing a child psychologist in 2007 and discussed the importance of adhering to a set plan, it was only later that she actually sought to enforce the strict plan. Notably, this change in access arose at the same time that the Mother filed her petition to relocate.

The Father testified as to his day to day involvement with A. As she stays with him during the week, he takes her to school on the days that she is with him and picks her up on the days that he is not working. He explained that he is a "hands-on" father by reading to her class, going on some and hosting some of her play dates, going with her to paint and pottery classes and her soccer and gymnastic activities. The Court found credible the testimony of the mother of one of A's closest friends, who testified at trial as to the nature of the Father's relationship with A. She indicates that he speaks to A's teachers every day on the days that he takes her to school and that he is involved with the other parents that pick up or drop off their children at the school. She was accustomed to seeing him when he brought A to school and had been on several play dates with the Father, A and her daughter. A's school records also support the Father's claims of involvement in A's life stating in September 2008 that "Biol. Dad picks her up several times/week" and in May 2009 that "Father is v. involved parent."

The Mother proffers that the Father will not be prejudiced by the 20 mile move, particularly under the parenting plan that she proposes, which she contends will offer him more time with A. That plan would give Father 5 out of every 14 days but would change the visits to one mid-week overnight and alternate weekends. The Mother claims that she will arrange for A to be transported from Scarsdale on Wednesdays after school and that the Father can then drop her off at school first thing the following morning. It appears that Mother contemplates that A will be driven back and forth between Manhattan to Scarsdale, which will likely occur during rush hour traffic. Thus, although the distance may be 20 miles, the commute each way during rush hour may be lengthy.Conclusions of Law

The Court finds that the Mother has not proved by a preponderance of the evidence that a relocation to Scarsdale would be in A's best interests.

The Mother cites ample case law demonstrating what she claims is support for a move of this short distance. The Court of Appeals, however, has acknowledged that each relocation case must be considered on its own merits with due consideration of the relevant facts and circumstances. Tropea v. Tropea, 87 NY2d 727, 739 (1996). Under Tropea, there is no general rule that supports any one specific outcome in relocation cases. Thus, it is almost impossible to compare one relocation to another as each centers on the very unique facts applicable to that family.

In Tropea, the Court of Appeals provides a starting framework for analysis. Each relocation request is to be "considered on its own merits with due consideration of all of the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child." Tropea v. Tropea, supra at 739. The parent seeking relocation must show by "a preponderance of the evidence that a proposed relocation would serve the child's best interest [ ]" (Matter of Tropea v Tropea, supra at 741), taking into account, inter alia, the "quality [*5]of the relationships between the child and the custodial and noncustodial parents." Id. at 740.

The Court of Appeals has found that "no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome." Tropea, supra at 738. Instead, the Court of Appeals enumerated certain relevant factors to be considered, including, but not limited to "each parent's reasons for seeking or opposing the move, the quality of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial 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 noncustodial parent and the child through suitable visitation arrangements." Tropea supra at 738, 740-741. Overall, "[w]hile the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered [case citation omitted], it is the rights and needs of the child[] that must be accorded the greatest weight, since [she is an] innocent victim[] of [her] parents' [] divorce...". Id. at 739.

At trial, the Mother presented only superficial reasons for the move to Scarsdale. As to her assertion that she and her husband have experienced a financial decline, the Court finds that there was no evidence to support this claim. It is apparent based on the tax returns for the last two years and the Mother's husband's projected income for 2009, that there has been no significant decline in income for the family. The Mother also testified that they are looking for homes in the $1,200,000 to $1,3000,000 range which further undercuts her claim that the family has experienced a financial decline necessitating a move to Scarsdale.

The Mother further claims that it would be detrimental for her children to attend different schools, which she contends would be the case if she continues to reside in Manhattan. She first testified that she could not afford to send her younger son to the Town School. Yet, she later admitted that she would choose not to send her son to that school as she would prefer to spend her money in other ways. Notably, the Father has offered to pay all of A's tuition at the Town School, which would help lessen any alleged burden on the Mother's finances. The Court discredits the Mother's claims that her children would be detrimentally impacted by attending different schools. Not only did the Mother not establish that the children would have to attend separate schools, but she presented no relevant evidence to support her bare assertion that they would not fare well in separate schools. It would appear unlikely that the purported detrimental effects on the children could be evidenced at this point especially in light of the fact that the Mother's younger child, Benjamin is approximately 1 year of age.

The Mother's other reasons for the move center around what she perceives as the lifestyle benefits of living in a suburb. She points to things like having a backyard, being able to ride bicycles in the driveway, barbeques and the town pool where kids can go and hang out. While the Mother discussed several of these lifestyle benefits for children, she presented no concrete evidence as to how these purported lifestyle benefits are enough to warrant a second relocation in under five years for A and how these benefits demonstrate that the move to Scarsdale would be in A's best interests.

Similarly, the Mother failed to demonstrate how A's life will be enhanced economically, emotionally and educationally. The evidence adduced at trial demonstrates that there will be no significant economic benefit for the proposed move. The Mother does not ask to move for any professional advancement on her or her husband's behalf. The Mother failed to present any evidence, [*6]other than her claims as to private school tuition and the cost of her rent, to show an economic enhancement. The Mother and her husband contemplate spending a substantial amount of money on a new home. Yet, she did not present any information as to mortgage payments or taxes for the new home as opposed to the amount that she currently pays in rent. Therefore, the Court finds that it cannot find any economic enhancement as the Mother failed to show that such enhancement would result from the proposed move.

In addition, the Mother presented absolutely no evidence at trial that A's life would be enhanced from an emotional standpoint from the move. To the contrary, the testimony adduced at trial demonstrates that A is a happy, well adjusted child. It appears that she is doing very well in school and that she has flourished during her time at the Town School. She is comfortable with the present parenting plan in which she spends significant periods of time with both parents during every week. The testimony presented at trial showed the level of the Father's involvement in A's life. This is not an alternate weekend father. This is a father who spends three nights with his child every week. This is a father who attempted to see his child every day, which the Mother permitted until February 2009 when she unilaterally decided that it was no longer in the child's best interest. This is a Father who walks his child to school two mornings each week and knows his child's teachers, friends and their parents. He is a hands-on, full-time father. A is a young child. To change her schedule in such a drastic way as to change the quality of her relationship with her father cannot be construed as being in A's best interests or as an emotional enhancement to her life.

In addition, the Court is mindful of the fact that the Mother proposes that A attend three different schools in a nine month period under her plan. The Court finds that the possible detrimental impact of A being switched to multiple schools, along with her move and the reduction of her father in her day to day life, cannot be found to be an emotional enhancement or in her best interests. Salich, supra at 171.

Similarly, the Mother did not demonstrate how A would receive an educational benefit from attending the Scarsdale public schools. There was no evidence presented regarding the differences between the Town School and the Scarsdale public schools. While the Mother expressed dissatisfaction with the fact that A would have the same students in her classes until the eighth grade, there is no indication that A would not see the same students year after year in a public school setting. The Court notes that no documentary evidence was submitted with respect to the quality of education A would receive in Scarsdale as opposed to the Town School or the relative benefits or detriments of either school.

The Court of Appeals has listed other factors which must be examined in a relocation case including (1) whether the custodial parent has stated a legitimate reason for wanting to move; (2) whether the motivation behind the move is made in good faith; (3) whether the non-custodial parent's loss of access may be preserved through an alternate visitation schedule that enables regular and meaningful access; and (4) whether there are "any other facts or circumstances that have a bearing on the parties' situation ... with a view toward minimizing the parents' discomfort and maximizing the child's prospects fo a stable, comfortable and happy life." Matter of Tropea v. Tropea, supra 739-740.

The Court finds that the Mother has presented no legitimate reason for the proposed move. While the Court understands that the Mother feels that her new family will benefit from some purported lifestyle changes afforded by a move to a suburb, she presented no concrete evidence as [*7]to how these purported benefits are in A's best interests or how they would be significantly better than the life she is living in Manhattan.

In addition, the Court questions whether the Mother's motivation behind the move is in good faith. The testimony adduced at trial shows how the Mother has consistently said or done at the moment what she felt necessary to achieve the outcome which she desired. In Colorado, she testified to a move to New Jersey to be near family and in an environment that would benefit A. This plan was specifically described in the Findings. Yet, the Mother stayed in New Jersey but a few weeks, admitting that she never even unpacked her bags, and then moved to New York.

In relation to the Parenting Agreement, it is evident that the Mother never felt bound by it. Her own testimony shows that she was planning to break it only months after it was entered. She demonstrated no regard for the fact that the Father had moved some 2,000 miles across the country in reliance on that agreement. It also shows a disturbing lack of consideration for the Father's determination to be a significant presence in A's life and the benefits that A receives from having two full-time parents available to her at all times. This perhaps is the most troubling factor to the Court.

The Mother has proposed a parenting plan which would allow the Father to have alternate weekends with A from Friday to Monday and Wednesday night overnight visitation. This would reduce the Father's parenting time from six days every fourteen days to five days. She further indicates that the Father could have additional days for holidays and vacations. This proposed plan changes the very nature of the Father's relationship with A. He will no longer be a significant participant in her weekly schooling and activities. A will lose out on having her father be actively involved in her education and daily life. That type of a relationship cannot be replicated by substituting vacation and holiday time to make up for lost days. The proposed move, while not of significant distance, is enough to change the very nature of A's daily life. She will be reduced from a child with two full-time parents to one full-time parent and a part-time parent. Her step-father would slip into the position presently enjoyed by her father, which is a legitimate concern of the Father.

The Court finds the Mother's proposed move will have an adverse impact on the Father's role in A's life. See Tropea v. Tropea, supra at 739. The Court recognizes where both parents have been a constant presence in the child's daily life a change to long weekend visitation and holiday time cannot "make up for the loss in the quality of the visitation" enjoyed during the week prior to the proposed relocation. Salichs, supra at 171. See also, Rutz v. Carinci, 6 AD3d 992 (3d Dept 2004). In addition, the Court finds that the Mother's belief that her family would lead a better life in Scarsdale is not enough to grant permission for the move even if it is a short distance especially in light of the fact that the Mother has not presented evidence to support her allegations that the move will be in A's best interests. Her speculation alone is not enough for this Court to permit this move no matter the distance. See Streid v. Streid, 46 AD3d 1155 (3d Dept 2007).

Furthermore, this Court had the opportunity to observe the parties over several days of trial and as such was in the unique position to assess the credibility of the parties. The Court notes that the Mother's testimony was not credible. The Mother, who is an attorney, was nuanced in her presentation, and clearly stated what she believed was necessary to achieve her desired outcome in this matter.

Lastly, this Court notes that where parents enter into a formal custody agreement, it will not [*8]be set aside without a showing of a sufficient subsequent change in circumstances since the time of the stipulation, and unless the proposed modification is shown to be in the best interests of the child. Family Court Act §652(b); Sergei P. v. Sofia M., 44 AD3d 490 (1st Dept. 2007). The Court has considered whether the Mother has shown the requisite sufficient subsequent change in circumstances since the time the parties' entered into the Stipulation and whether the proposed modification is in the child's best interests. The Court finds that the Mother has not demonstrated a sufficient change in circumstances. She failed to provide any documentation or evidence that demonstrates how and to what extent her circumstances have changed. Overall, the Court finds that the Mother's request for relocation is based on speculative and frivolous reasons. Moreover, the Court has found that such modification of the parties' Stipulation would not be in the child's best interests for the reasons set forth in this decision.

For all of the above stated reasons, the Court finds that A's best interests are best served by maintaining the stability and continuity of the present custodial arrangement under which she has been thriving. That arrangement has put into place a strong family unit for A where her parents are sharing parenting time in a manner consistent with the well-being for the child.

This constitutes the decision and order of the court.

Dated: December 23, 2009

New York, New York

ENTER:

__________________________

HON. LORI S. SATTLER

New York County Family Court