E.M.M. v W.M.Annotate this Case
Decided on December 5, 2018
Supreme Court, Kings County
Attorney for Plaintiff
527 Madison Avenue, 7th Floor
New York, New York 10022
Jaime L. Weiss, Esq.
Attorney for Plaintiff
230 Park Avenue
New York, N.Y. 10169
Maria Coffinas, Esq
Attorney for Defendant
186 Joralemon Street, Suite 910
Brooklyn, N.Y. 11201
Cheryl S. Solomon, Esq.
Attorney for Children
26 Court Street, Suite 700
Brooklyn, N.Y. 11242
Jeffrey S. Sunshine, J.
The Plaintiff is seeking to relocate with the children to Bronxville, New York and the Defendant is opposed to the relocation to Bronxville. An evidentiary hearing on the limited issue of relocation to Bronxville was held on August 13, August 15, August 16 and concluded on August 17, 2018.
AGREED UPON FACTS
The parties in the action for divorce resolved all the issues between them by written [*2]stipulation entered on October 25, 2016 and allocuted on the record in open Court on October 25, 2016. The parties have two children M.I.M. born in December of 2011 age 6 and C.O.M. born in November of 2013 age 5. The oldest child attends a Parochial School in Brooklyn and the youngest child attends a "Church" School in Brooklyn. The Plaintiff and the children are currently living in Brooklyn Heights in a basement "railroad type" of apartment with a small kitchen, one bathroom, a bedroom the children share and a bedroom for the Plaintiff. The parties lived together in this apartment during the marriage and the children have lived here since they were born. The Defendant is currently living in Brooklyn Heights with his girlfriend in a two-bedroom apartment with a parlor floor and backyard garden close to the youngest child's school and the Plaintiff's residence.
The Plaintiff is currently employed as in-house counsel for a philanthropic trust and the Defendant currently owns his own Law Firm in midtown Manhattan. The Defendant's income per 2017 tax return was $155,324.50 and he has $90,600 in student loan debt, $29,710 in credit card debt and owes $36,000 in back taxes. The Plaintiff's income per 2017 tax return is $295,342 and has $35,000 in debt owed to her parents.
The Plaintiff in the instant proceeding moved post judgment on March 27, 2018 for inter alia permission to relocate to Bronxville, New York with the two children of the marriage. The Defendant moved post judgment on April 19, 2018 inter alia opposing the Plaintiffs' application for relocation.
A judgment of divorce was signed by this Court on December 8, 2016. At the outset the Court noted that both of these parents are sensitive, nurturing loving dedicated individuals who appear to be genuinely concerned about the growth, development and well-being of their children. Pivotal to the parties' present disagreement is the following clause on page 10 of the October 25, 2016 agreement:"4. If either party wishes to relocate his or her primary residence outside the five (5) boroughs of New York City then that Party shall as soon as practicable, but in any event no less than ninety (90) days prior to his or her planned relocation, inform the other Party of such planned relocation."
with a hand-written addition on page 10: "The parties agree to endeavor to consult with one another concerning changes in residence that will or may affect the children and/or the other party. If the parties cannot agree regarding relocation, then either party may seek relief from a court."
The Plaintiff testified that she was born in 1979, and the parties were married in 2009 and there was a settlement agreement with the Defendant in October 2016 where they agreed to joint custody[FN1] of the two minor children. The Plaintiff testified that according to the October 2016 settlement agreement that if the Defendant and the Plaintiff could not agree on education, religious training, healthcare, and major decisions regarding welfare and well-being regarding the children they must consult with each other, but the Plaintiff would have the authority to make the final decision if there is no agreement. The Plaintiff further testified that the relocation provision in the October 2016 settlement states that if either party wants to move outside of the five (5) boroughs he or she must provide 90 days' notice of the intent to relocate to the other [*3]party and endeavor to consult regarding relocation.
The Plaintiff testified that she began looking into Bronxville in January 2018, prior to informing the Defendant of her intention to relocate. The Plaintiff stated that she toured the Bronxville public school, spoke to friends with children in the school and researched on the internet regarding apartments and the schools prior to informing the Defendant. The Plaintiff further testified that she found preschools for the youngest child for half the cost of the current school. The Plaintiff testified that she consulted with the Defendant about Bronxville in February 2018 by discussing the move with a parenting coordinator, inviting Defendant to do school tours, and sending Defendant apartment listings because the "Defendant was willing to relocate as well". The Plaintiff testified that she did not tell the Defendant right away because she was still trying to decide herself whether Bronxville was worth considering because it is a big decision. According to the Plaintiff the Defendant never voiced any concerns and even stated that the Bronxville school seemed great but refused to be part of the relocation process. The Plaintiff testified that she made the decision to move after consulting with the Defendant even though both parties currently lived within walking distance of the children's current schools. The Plaintiff testified that consulting ended when the Defendant filed the motion to stop the relocation.
The Plaintiff testified that if the Defendant relocates to Bronxville she will commit to staying there. The Plaintiff stated that she informed the Defendant about recommendations for pediatricians in Bronxville and tried to have the Defendant contact the pediatrician, but he refused. The Plaintiff testified that if the Defendant insists on keeping the children's pediatrician in Brooklyn Heights she would be willing to do so. She also asserted that in the settlement agreement the parties agreed that the children would remain with the current pediatrician and if not, at least the same medical practice which is walking distance between both current Brooklyn Heights homes[FN2] . The Plaintiff testified that the Defendant chose to worship in a certain church without consulting her originally, but she did not object to it. The Plaintiff further testified that she has no objection to the Defendant choosing a church in Bronxville and the children continuing to attend their current church in Brooklyn Heights when visiting the Defendant.
The Plaintiff testified that she had located a home in Bronxville to move to but that she did not purchase the home in Bronxville because the Defendant did not agree with the move and filed a motion regarding the relocation. The Plaintiff stated that the home she was considering in Bronxville was within walking distance to the Metro North and to the Bronxville Public school and had enough bedrooms for both children and Plaintiff to have their own rooms. Plaintiff testified that she wanted to find a location convenient for the Defendant as it is only a 28-minute train ride from Grand Central Terminal (near his office) and is within walking distance from the train in Bronxville. The Plaintiff testified that she is trying to limit her commute to no more than 45 minutes to work. The Plaintiff testified that if she was permitted to move immediately she does not know where she would live but is willing to rent in Bronxville until she can find the right place.
The Plaintiff stated that she was seeking to move out of New York City to Bronxville before the 2018/2019 school year because she is seeking stability for the children, separate rooms for the children, and financial stability. The Plaintiff testified that the Defendant's prior issues with sobriety are not an issue, ACS is not involved with the family, there are no Domestic Incident Reports, no violations filed and no proceedings in any jurisdiction other than this Court.
The Plaintiff noted that the Defendant had moved multiple times during the children's lives and stated that the Defendant spent two months in Connecticut, moved back to Brooklyn Heights until May 2014, then was in a rehabilitation center in East Hampton until June 2014, then moved into an apartment in Manhattan for three months, owned by a woman he met in the rehabilitation center and then back to Brooklyn Heights where he currently resides.
As a predicate for her desire to relocate the Plaintiff asserts that the apartment she is currently living in is small and as the children are getting older they need separate rooms. The Plaintiff testified that she has not received any eviction or rent increase notices and that she fears her landlord will either increase the rent or evict her although she admits that she has no factual knowledge of this. The Plaintiff stated that the apartments in the Brooklyn Heights Neighborhood were way above price range and "that there were no adequate three bedrooms apartments that I could afford in Brooklyn Heights" and that she looked for apartments in the neighborhood but 1.7 million for an apartment is over budget and much smaller than what was available for less in Bronxville.
The Plaintiff had financial concerns regarding the Defendants ability to pay his share of the add-ons and child support and is late in paying tuition and add-ons including medical bills and piano lessons. The Plaintiff testified that she requested the add-ons, including medical bills because the Defendant has still not purchased life insurance, and requested the spring tuition in November 2017 but did not receive the tuition reimbursement until March 2018. She claims that she never brought any motions regarding non-payment because she did not want to litigate every issue as it is not good for her family and the money ultimately was paid and the timeliness never negatively affected the children.
The Plaintiff asserts that her financial obligations would be lessened in Bronxville and relieve the Defendant of paying for the children's tuition which he was struggling with. In as much as the school is paid for by taxes and the property taxes are around $25,000- $30,000 a year which would be paid by her own income and the contribution that the Maternal Grandparents are willing to help her financially in Bronxville or in the five boroughs if they found something suitable.
The Plaintiff testified that the parties agreed that the youngest child would attend another year at his present school after meeting with teachers about the child remaining in Pre-K for an extra year and that the youngest child would "benefit socially and emotionally from another year in pre-school". According to the settlement agreement the youngest child would attend this specific school and is enrolled for the 2018/2019 school year. The Plaintiff testified that she paid the youngest child's tuition for the 2018/2019 school year and completed the enrollment contract in January 2018 and that in January 2018 the parties discussed re-enrolling the youngest child but did not discuss anything about Bronxville or that she did not want the youngest child to attend the church school. The Plaintiff claims that she can get a refund for church school because she purchased tuition insurance. According to the Plaintiff, the Defendant submitted an application for the youngest child to attend Kindergarten at the local public school because it was the zoned school and the Plaintiff was only given notice when the Defendant sent the [*4]Plaintiff the acceptance letter to the zoned school.
The Plaintiff has concerns regarding the oldest child's present parochial school. The Plaintiff stated that the oldest child is not doing well socially, is having a hard time making friends and is being bullied. She testified that the oldest child had some friends but very limited play dates and was often not invited to birthday parties and that she reached out to many other parents regarding play dates to help the child socialize. She admitted that she never considered a mental health evaluation to deal with bullying and the oldest child does not have social anxiety issues, it is just that the class is small and their limited number of students to befriend. The Plaintiff stated there was "a handful of times" the child was very upset and crying because of school and the Plaintiff contacted the teacher, principal and Defendant about the bullying and math issues and when they were not resolved she started exploring other options. The Plaintiff also stated that the child's report card stated that she needed help in math and when the Plaintiff addressed this with the teachers she did not get a satisfactory response, that the child had two different teachers during first grade and that one half was one teacher and the second half was a substitute teacher who was constantly absent. The Plaintiff conceded that she did not get a math tutor but did state it was because the maternal grandmother is a teacher and worked with the oldest child in math. According to the Plaintiff, the Plaintiff and Defendant originally looked at the zoned school but decided that a parochial school was a better fit for the child. The Plaintiff posits that the local public school is overcrowded, and no child is guaranteed a spot in the school as well as there were multiple applications needed for middle school and high school. The Plaintiff testified that in the settlement agreement the parties agreed that the oldest child was to attend the parochial school.
The Plaintiff testified that the Bronxville classes sizes are much bigger, and the children would be around more students in a very tight knit community. She asserts that the facilities are extensive, the classrooms are bright and beautiful, the school is large with a wide range of extracurricular activities, well organized sports team, academic support and a new theater. The Plaintiff testified that she has friends in Bronxville with children who are friendly with her children and the children are assured spots in the school as long as they live in Bronxville and there is no pre-registration or re-enrollment process. Plaintiff stated that she did not explore schools in all five boroughs but did look at school in Manhattan that was very expensive. Plaintiff stated that she would be willing to move in with the maternal grandparents in Manhattan[FN3] and send the children to the same school the Plaintiff attended as a child.
The Plaintiff testified that the Defendant has visitation every Tuesday morning at the Plaintiff's home from 7:30 A.M. until 8:30 A. M. The oldest child needs be in school at 8 A.M. and the Defendant was talking her to school on Tuesdays for a month, but according to the Plaintiff the child was late to school a few times and he no longer takes her. The Plaintiff further testified that the Defendant also has visitation every Wednesday evening at the Plaintiff's apartment from 6:30 P.M. until about 8 P.M. and has the children at Defendant's apartment every [*5]other weekend from 5 P.M. on Friday until 5 P.M. Sunday. Plaintiff testified that she is present during the Wednesday night visits, the nanny cooks and the Defendant reads with the children, watches television and then puts them to bed. Currently the Plaintiff and Defendant live within 15 minutes walking distance from each other. The Plaintiff further admits that the Defendant spends time with the children outside of the agreement when the Plaintiff needs the Defendant to stay later certain days or switch certain days. The Plaintiff stated that the Defendant sees the children outside of agreement without permission but admitted she never went to court to object to it. The Plaintiff also testified that the Defendant attends most of the younger child's school functions and some of the oldest child's school functions.
The Plaintiff is prepared to "offer" the Defendant increased parenting time and offered to deliver and pick up the children at Grand Central Terminal if the Defendant does not relocate. She appears to put forth the proposition that if would be in the children and the Defendant's best interest if he too relocated to Bronxville and has encouraged him to do so. The Plaintiff further testified that she is willing to increase the Defendant's parenting time even if he does relocate. According to her, the settlement agreement states that 45 days before the youngest child turns five the parties shall meet to develop a plan with the goal of increasing the father's parenting time as long as there hasn't been a positive drug test. She has not seen any positive drug tests and believes that if she moved to Bronxville the expansion of visitation is still likely. The Plaintiff conceded that it would be very hard for the Defendant to drop the children off at school after overnights if the children move to Bronxville. The Plaintiff voiced concerns that it was hard for the Defendant to get the oldest child to school on time with a ten-minute walk but if he agrees to get them to school on time she would be open to overnights in Brooklyn. The Plaintiff testified that she offered to extend drop off on Sunday from 5 P.M. to 7 P.M. and have pick up and drop off at the maternal grandparent's home in upper eastside Manhattan. (She appears to also offer Grand Central Station.) The Plaintiff asserted that since the relocation would eliminate the Tuesday morning visits therefore adding the time on Sunday would make up for it and that the weekday parenting would not be affected because Bronxville is easy to get to from the Defendant's job and the quality and quantity of the visitation will not change. She hopes the Defendant will continue to attend school events and spectator friendly activities. The Plaintiff stated that the Defendant owns his own practice and has flexible hours and such a change could be effectuated. The Plaintiff testified that she wants a healthy co-parenting relationship and moving away from walking distance between the parties is supporting healthy co-parenting.
According to her testimony she works 9 A.M. to 5 P.M. five days a week and sometimes later. The parties have had the same full-time nanny since July 2014. The Plaintiff testified that over the summer the children were at camp in Brooklyn Heights five (5) days a week from 9 A.M. to 5 P.M. and the nanny would take them and pick them up. After camp the nanny would take them to the playground or home and then make them dinner, bathe them, and get everything prepared for the next day. The Plaintiff testified that during the school year the nanny takes the youngest child to school and the Plaintiff takes the oldest child to school. The oldest child has swimming at the Y.M.C.A. and the maternal grandmother would take her swimming and the nanny would take her to girl scouts and piano lessons, as all activities are in the Brooklyn Heights neighborhood. The Plaintiff stated that there are camps and girl scouts in Bronxville as well. The Plaintiff testified that the children are generally pleasant and happy with the nanny and that she trusts the nanny but never informed the nanny of the possible move or the legal proceeding. The Plaintiff testified that she hopes the nanny would come with them but if she [*6]cannot she will keep in touch with her and hire someone else. She asserts that if the nanny does not come with them to Bronxville that there would be no impact to the children as the Plaintiff would hire another loving happy nanny. The Plaintiff testified on August 13,2018 that she is trying to relocate prior to the start of the 2018/2019 school year but does not have a plan regarding child care and has not interviewed any nannies. She stated she knows parents in the area and has contacts that have already informed her they would refer her to professional care givers.
The Defendant testified that he entered into an agreement with Plaintiff on October 25, 2016 and that he owns his own law practice in midtown Manhattan. The Defendant testified that the agreement allows the parties to make decisions together but in the event of no decision, after consulting with each other, the Plaintiff makes the final decision.
The Defendant testified that the parties talked about the relocation over the phone and he asked to go and see the parenting coordinator[FN4] as it was a big decision and he had concerns. He asserts that he did not agree with the move to Bronxville and the Plaintiff said that she was moving and going to Court to get an Order allowing her to relocate so the Defendant filed the instant motion. The Defendant testified that the parties did see the parent coordinator in person, spoke over the phone, through e-mails and had an appointment to see the parent coordinator again, but he states it was Plaintiff's position that she could, under the agreement, and already decided to move and that the Defendant had to get on board. The Defendant testified that the Plaintiff refused to meet with parent coordinator at first and that the Plaintiff asked him to tour preschools in Bronxville but he did not. The Defendant also testified that the Plaintiff sent him links to rentals in Bronxville and the Defendant drove and looked around the Bronxville area as well as looked into a friend's home there. He asserted that he has no intention of moving to Bronxville but considered it since the issue arose.
Without conceding that the Plaintiff did not need court permission, the Defendant on cross examination testified that there was no "order" preventing the mother from looking in Bronxville, there was no "order" preventing her from buying in Bronxville and no "order" preventing her from renting in Bronxville. The Defendant also testified that the Plaintiff did not purchase or rent a home in Bronxville.
The Defendant testified that the youngest child is currently enrolled in the same school that the oldest child attended preschool and that the settlement agreement stated that the Plaintiff and Defendant would split the cost of schooling 50/50. He admitted that he was asked to pay his share of the tuition in November 2017 and did not pay it at first because it was a "big bill" and needed to speak to his lawyer for advice. The Defendant categorically asserted that he needed the advice because it was a large bill and was given 5 days' notice to pay. He conceded that he knew his children were enrolled and that he agreed to pay 50 percent but was still surprised by the bill. The Defendant testified that he did pay the tuition in March 2018 and that he was shocked by the bill because it was over $8,000 dollars and was not given any prior notice that it was due. The [*7]Defendant testified that Plaintiff never allowed him to pay the school directly and as such they missed the payment plan and financial aid deadlines. The Defendant also testified that he is current with all basic child support and add on expenses.
The Defendant conceded that he did place the youngest child in a lottery for enrollment into the local public school without consent of the Plaintiff. The Defendant stated that the Plaintiff did not respond or consent to the local public-school lottery acceptance. The Defendant further testified that the parties and teachers in the current preschool agreed that the youngest child should remain in that school for one more year but entered the youngest child in the lottery regardless. The Defendant asserted that his total monthly expenses are around $18,908.50 and his gross income was $155,000 a year but this year, 2018, will be closer to $180,000- $190,000. The Defendant testified that he needed to discuss schooling and finances with the Plaintiff regarding the youngest child's schooling. The Defendant testified that the Plaintiff made the decision to keep the youngest child in preschool for an extra year and he was worried about the cost.
The Defendant agreed that the oldest child attends a Parochial School on consent and that he likes the pageantry of the education, the small school, common core, the people, the teachers and it seems like a good fit for the oldest child. The Defendant testified that he has positive feelings for the school including the religious aspect of the education and the language curriculum. He stated that he has met with teachers and received the oldest child's report card and she is in good standing in math. The Defendant also states that there was an issue on the child's "math app" and once the device was restarted the glitch in the math app was resolved. He claims that the oldest child is either meeting standards or excelling in all classes according to the report card, the teachers review was glowing and the comments show she is thriving. The Defendant further testified that the report card does not reflect social issues, any struggles with subjects or struggling behaviorally. As to the assertions that the child was being "bullied" he spoke to the teachers about bullying, but it did not seem to be that big of an issue to the child. The Defendant stated that that teachers assured him that there was no bullying and only "normal social interactions between first graders". The Defendant testified that he was on a school trip and observed the other child's (the alleged bully) behavior and the child seemed like a normal young boy. The Defendant conceded that he has concerns that the child will face bullying but not necessarily this year or for anything specifically. The Defendant stated that the child does go on play dates and he does not think the classes are too small.
The Defendant outlined that he has weekday access with the children on Tuesday morning from 7:30 A.M. to 8:30 A.M. "or nine o'clock 'ish" [Sic] if he walks the children to school and Wednesday nights from around 6:45 P.M. until around 7:45 P.M. sometimes later if the Plaintiff has other obligations. He claims that there were times that the oldest child was late to school but it was not his fault and that the nanny comes close to 8 A.M. because that's when parking is available and that is the cause of the lateness, and the Defendant must rush out when she arrives. The Defendant further testified that the report card only had five lateness's for that term and no tardiness for term 3 and 4, when he was taking the child to school. He clearly asserted that the proposed move would impact the Tuesday morning parenting time. The Defendant stated under the agreement that any extra parenting time needs to be talked about and agreed upon by the parties. The Defendant also has every other weekend Friday 5 P.M. to Sunday 5 P.M. at the Defendant's home. The Defendant asserted that pick up in Manhattan is "unacceptable", "far away", and "inconvenient".
The Defendant stated that he has missed very little parenting time and that when he does it is mostly switching days at the Plaintiff's request. The Defendant testified that while the schedule was not altered for the summer there were extra days for holidays and with the children's camp around the corner he sometimes saw them at pick up or drop off for about ten-minutes. He stated that he had the children on Memorial Day, the week of July 4th, the first week of August, and is scheduled to have the children the last week of August. The Defendant testified that the children continued to go to camp during their time with him. The Defendant testified that he picks up the children at school, apartment, or coffee shop and they are happy to see him. The Defendant testified that the nanny takes the children to camp when they are not with him.
It is clear from the testimony that the Defendant posits that not having the children living down the street will strain their relationship and that the accommodations for extra time offered by the Plaintiff will be time they are on the train back and forth from Bronxville and seeing them during the week for even just a kiss or have a good day at school is important. The Defendant testified that he thought the parties were working towards 50/50 residential equal co parents and if the move to Bronxville was allowed overnights would be "extremely difficult" getting the children from Brooklyn to Bronxville. The Defendant also stated that all the extracurricular activities would be in Bronxville and the Defendant could not participate to the same extent he could in Brooklyn and both children are very happy when he attends school and extracurricular functions. The Defendant testified that the move would impact both the children and himself as they would see each other less and the Defendant will not be part of the children's day to day life.
"A parent seeking leave to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests" (Matter of Caruso v Cruz, 114 AD3d 769, 771, 980 NYS2d 137 ; see Matter of Ventura v Huggins, 141 AD3d 600, 600, 34 NYS3d 599 ; Matter of Francis-Miller v Miller, 111 AD3d 632, 635, 975 NYS2d 74 ; Matter of Steadman v Roumer, 81 AD3d 653, 654, 916 NYS2d 796 ). In determining whether a proposed move is in a child's best interests, courts are "free to consider and give appropriate weight to all of the factors that may be relevant to the determination" (Matter of Tropea v Tropea, 87 NY2d 727, 740, 665 NE2d 145, 642 NYS2d 575 ; see Matter of Hall v Hall, 118 AD3d 879, 880, 987 NYS2d 608 ). These factors include, but are not limited to, "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 noncustodial parent, the degree to which the custodial parents 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 child through suitable visitation arrangements" (Matter of Tropea v Tropea, 87 NY2d at 740-741; see Matter of Ventura v Huggins, 141 AD3d at 600 ; Matter of Hall v Hall, 118 AD3d at 880-88 , Sternberg-Kennedy v Kennedy, 2018 NY Slip Op 08171 )).
The Plaintiff's position that relocating would enhance her life and the children's lives economically was tenuous at best (see Rubio v Rubio, 71 AD3d 862, 863, 897 NYS2d 170 ). The Court understands that the Defendant's late payment of tuition and add-ons on time are an issue, however this factor alone is not enough for relocation purposes. Moreover, the relocation would negatively impact the quantity and quality of the children's future contact with [*8]the Defendant, which the court must consider in a determining a relocation in this case. (see Matter of Tropea v Tropea, 87 NY2d at 741). The Defendant testified to his extensive and meaningful involvement in the children's daily lives, school, and extracurricular activities. If the Plaintiff was permitted to relocate with the children to Bronxville, the Defendant would no longer be able to see the children during the week or remain involved in their many activities (see Quinn v Quinn, 134 AD3d 688, 689, 20 NYS3d 427 ; Schwartz v Schwartz, 70 AD3d 923, 925, 895 NYS2d 206 ; cf. Matter of DeCillis v DeCillis, 128 AD3d 818, 820, 7 NYS3d 614 ). Any extra parenting time that the Defendant is allowed if the move to Bronxville would impact on the quality of visitation as well. Travel time and certainly time spent on the Metro North and the New York City Subway cannot qualify as a substitute for quality parenting time. Finally, the Plaintiff on the record before the Court did not establish by a preponderance of the evidence that her proposed relocation would enhance the children's lives emotionally or educationally (see Matter of Tropea v Tropea, 87 NY2d at 741). The Court cannot ignore that the Plaintiff's application comes before the Court 26 months after signing a comprehensive settlement agreement where the parties agreed to joint custody, certainly it had to be contemplated by the Plaintiff that the apartment was small or that the children would be getting older.
The Court on the record before it cannot draw the conclusion that a judicial determination that the local public school in Brooklyn Heights is less favorable than the Bronxville public schools. Other than plaintiff's anecdotal opinion there is not extrinsic evidence in the record that the public school in Bronxville is superior to the public school in Brooklyn Heights. Nor is there any extrinsic evidence provided that the Brooklyn Heights public school would not meet the needs of the children. Nor can the Court ignore the fact that the assertion that the Plaintiff's present housing was in jeopardy was mere speculation without any proof. The parties entered into this agreement on October 25, 2016 a mere 17 months later the Plaintiff is seeking to relocate. It appears that to remove a child from first grade because of a change in teachers or encountering a bully when juxtaposed against drastically reducing a noncustodial quality parent's parenting time with two children is a rather drastic remedy, especially where the parties have entered into such a comprehensive parenting agreement.
The court recognizes that housing costs in Brooklyn Heights could pose a challenge, yet the evidence adduced at trial shows that the home the Plaintiff contemplated buying with the assistance of her father was within her 1.5 million price range. Her father testified that he was willing to provide financial assistance for this home in Bronxville because Brooklyn was substantially more expensive and did not address the criteria to better the lives of the children. When asked about the five (5) boroughs the Plaintiff stated that she is a working mother and wants to limit her commute to 45 minutes. The rejection of adjacent neighborhoods in Brooklyn because it would increase her travel time is of great concern to the Court. It appears to the Court that the plaintiff has friends in Bronxville, decided to attempt to move to Bronxville and even found a house, all at the expense of the father's quality parenting time.
The factual predicate behind Plaintiff's application that she must move to find housing because in part her landlord may someday want the space lacks credibility. She earns about $295,342 per year and the Defendant earns $155,000 to $190,000 a year yet she claims she cannot find comparable or suitable housing accommodations in the neighborhood where they all currently live or neighborhoods nearby.
The Court cannot re-write the parties agreement. It specifically states at page 10 in [*9]handwritten form:"The parties agree to endeavor to consult with one another concerning changes in residence that will or may affect the children and/or the other party. If the parties cannot agree regarding relocation, then either party may seek relief from a court."
Under the terms of the agreement the parties also clearly intended there to be an expansion of visitation, which even articulated a lower standard than required by statutes or case law to make such an application[FN5] . "No later than 45 days before [Name Omitted] reaches the age of five (5), the Parties [sic] shall meet to develop a plan with the goal of increasing the Father's parenting time so long as there has been no Positive [sic] Test. In the event that the Parties [sic] cannot agree upon a parenting schedule that serves the best interests of the Children [sic], the parenting schedule set forth above in Paragraph 14 of this Article shall remain in effect. The Parties may avail themselves of professionals to help resolve any issues concerning the modification of the parenting schedule, including, but not limited to, mediators, child specialists or parent coordinators. In the event that the Parties [sic] cannot agree upon a parenting schedule, either Party [sic] may apply to a Court of competent jurisdiction, in which event there would be no requirement to show a change in circumstance to warrant a modification of the Agreement only a requirement to show it is in the best interest of the Children [sic]."
The proposed move would clearly defeat the intention of increasing the Defendant's parenting time as the parties had articulated in the agreement.
The Court would note, that to these parties' credit, the children are unaware of the proposed move. While certainly a double-edged sword because one could argue that they should be heard on the issue, the Court cannot and should not interfere with a rational, well intentioned decision not to involve them. Joined by the attorney for the children the Court granted both parties joint application to not have an in-camera interview with the children.[FN6] The Court is concerned that the children live in the only home they have ever lived in, in a neighborhood that has been the center of their universe with two loving cooperative divorced parents, and to be dramatically moved to start a new school in a new home as proposed by the Plaintiff lacks insight into the difficulties involved.
Not clarifying the future role of the nanny with the nanny herself and given the apparent close, loving bond both the children and the Plaintiff have with her is of concern. The Plaintiff not telling the nanny about her proposed move, who was subpoenaed by the Defendant and who [*10]was emotionally distraught at the hearing and was excused during her testimony, was disturbing to the Court.
It seems Plaintiff decided to move, found the actual home to move to and is furious that the Defendant objected. She passionately and credibly testified how she assisted in saving the Defendant's life, making no claims of relapse but clearly was offended by the need for a hearing and Defendant's opposition to the move.
Similarly, the Defendant's offense to what he perceived to be the Plaintiff engaging in what he refers to as typical over controlling behavior which he claims is a concern was palpable. He truly and sincerely is worried about a disruption in the children's lives and the motions that show it was his obligation to move to Bronxville.
Inasmuch as a best interests determination "requires an evaluation of the testimony, character and sincerity of all the parties involved" (Eschbach v Eschbach, 56 NY2d at 173; see Matter of Pietrafesa v Pietrafesa, 108 AD3d 557, 558, 970 NYS2d 38 ), the Court's credibility determinations are entitled to deference, and its decision will be upheld if supported by a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Jurado v Jurado, 119 AD3d 796, 796, 989 NYS2d 316 ; Matter of Pietrafesa v Pietrafesa, 108 AD3d at 558; Matter of Karen H. v Maurice G., 101 AD3d 1005, 1006, 956 NYS2d 154 ). The record demonstrated that not only would relocation have a negative impact on the relationship between the children and the Defendant, but the children's lives would not be meaningfully enhanced economically, emotionally, or educationally by the move (see Matter of Tropea v Tropea, 87 NY2d at 740; Matter of Ventura v Huggins, 141 AD3d at 601).[FN7] The Court is reluctant to judicially assert that a bigger house in Suburbia or a suburban school district is prima facia evidence that would warrant relocation. The Court understands the Plaintiffs concerns about the late payments, however the remedy should not be the relocation of one's children. Since the Plaintiff did not meet her burden to demonstrate that relocating was in the children's best interest, the Court denies the application to relocate to Bronxville, New York.
The Court must make it clear that each parent credibly and vehemently believes the position the have taken is the correct one. A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the move would be in the child's best interests and the Plaintiff has not met that burden. (see Matter of Tropea v Tropea, 87 NY2d 727 , 665 N.E.2d 145, 642 N.Y.S.2d 575; Matter of Ventura v Huggins, 141 AD3d 600, 34 N.Y.S.3d 599 ; Matter of Caruso v Cruz, 114 AD3d 769, 771, 980 N.Y.S.2d 137 ; Sternberg-Kennedy v Kennedy, 2018 NY Slip Op 08171 ).
Settle the order on notice together with a copy of this decision. The parties and counsel shall appear for oral arguments on the balance of the remaining motions on January 3, 2019 at 9:30 A.M.
Dated: December 5, 2018
HON. JEFFREY S. SUNSHINE
Footnote 1: Nine pages of the agreement were devoted to custody and parenting issues.
Footnote 2: Article IV Custody and Access paragraph 2 of the October 2016 settlement agreement between the parties states "The Parties have further agreed that the Children will continue to receive treatment with their current pediatrician, Dr. E.P., and in the event she is not available, with her practice group"
Footnote 3: While not the subject of the within hearing but having been raised and subsequently withdrawn the parties appear to have different interpretations of the relocation clause in the October 2016 settlement agreement as to the need for court permission to relocate within the five boroughs. That conflicting interpretation may need to be resolved by a hearing if Plaintiff intends on renewing her request to relocate to her parents' home in Manhattan.
Footnote 4: Article IV, clause 24 on page 23 of the parties October 2016 agreement states " .The Parties may avail themselves of professionals to help resolve any issues concerning the modification of the parenting schedule, including, but not limited to, mediators, child specialists or parent coordinators."
Footnote 5: "where parents enter into an agreement concerning custody 'it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children" (Matter of Gaudette v Gaudette, 262 AD2d 804, 805, 691 N.Y.S.2d 681  Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 770 N.Y.S.2d 101).
Footnote 6: The Attorney for the Children substituted judgment, pursuant to rule 7.2, regarding the relocation because the children were unaware of the possibility of relocation. The Attorney for the Children ultimately opposed the relocation because the children are currently doing well in school and the children are happy in the neighborhood with both parents close by and she believes it is not in the children's best interest to relocate.
Footnote 7: The argument proffered by the Plaintiff that there would less of a financial burden if there would be a move to Bronxville because the public schools are an alternative pre-supposes that the Court can on the record determine that the Bronxville schools are better than the NYC Public schools.