H.P. v D.P.

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[*1] H.P. v D.P. 2021 NY Slip Op 51188(U) Decided on December 13, 2021 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2021
Supreme Court, Monroe County

H.P., Plaintiff


D.P., Defendant

Index No. I2018002916

H. P.

The mother pro se

Spencerport, New York

D. P.

The father pro Se

Batavia, New York
Richard A. Dollinger, J.

An agreement provides that the parents will reside in the same geographic area and enjoy shared custody and equal visitation time. If one parent moves outside the designated area, this Court must consider what remedies, if any, should be available to a parent who negotiated for a provision in their settlement agreement that required both parents to stay in that area and now argues that the geographic restriction is in their children's best interests.

In this matter, the couple owned a marital residence in Brockport, New York. As part of their settlement agreement, the wife waived any interest in the marital residence but the agreement provided neither parent would "relocate a distance of more than the distance between Brockport and Spencerport unless otherwise agreed by the parties in writing." Importantly, the document does not specify a specific address in either village for calculating "distance" under the terms of the agreement. In the absence of a specific location as the starting point or ending point in the distance calculation, the Court instead relies on Mapquest, an on-line travel assistance application to calculate the distance. The Court, resorting to Mapquest, concludes that the distance between the two villages —Brockport and Spencerport — is 9.1 miles and the trip, by car, would consume 15 minutes.

After the agreement was signed and the marital residence sold, the father secured an apartment in Brockport and he and the children resided there for several months. In August, 2021, the father relocated to Batavia, New York, a distance outside the geographic limitation [*2]contained in the agreement. The distance from Brockport to Batavia is listed as 23.6 miles and the trip would consume 34 minutes. The distance from Spencerport to Brockport is 31 miles and the trip would consume 36 minutes. In short, measured from either Brockport or Spencerport, the distance to Batavia is either 14 or 22 miles further than the geographic limitation set forth in the agreement. The father justifies his move to Batavia because he was able to purchase a residence from his father at a discount. As a consequence, the father filed an application to modify his agreement, arguing that he would save money by owning a home rather than renting or seeking another purchase within the geographic limitation and further that his children's best interests would be served because his extended family in Batavia would be a better environment for his three children.

The father acknowledges that his relocation to Batavia is outside the geographic limitation contained in the agreement. He uses the distance from the mother's current apartment in Brockport to the original marital residence in Spencerport and reports the distance is 14.2 miles. The distance from the wife's apartment to the father's new home in Batavia is 30.7 miles, almost twice the distance, as he calculates it, from Spencerport to Brockport. As part of the justification for his request, the father further suggests that he had been providing round trip transportation for the children even though the agreement envisions a shared transportation between father and mother. The father claims that this commitment to provide all the necessary transportation mitigates any possible inconvenience to the mother or any impact on the children.[FN1] The father also does not seek an order changing either the children's residence with their mother or their enrollment in the Spencerport school district. He avers that he is actively involved in his children's lives and acknowledges that he coaches his children in sports in Spencerport where they attend school and the mother resides.[FN2]

In contrast, the mother filed an affidavit seeking enforcement of the geographic restriction, "primary full custody" of the children, changes in visitation times — eliminating the overnights during the week, keeping overnights only on weekends — and a recalculation of child support paid by the father. In sum, these competing applications do not simply involve the enforcement of the geographic limitations clause because the mother seeks modification of the custodial relationship, the visitation plan, and a recalculation of child support. These changes can only occur if there is evidence of a change in circumstances and, if that changes exists, then after a hearing on the merits relating to the best interests of the children. Matter of Ettelt v. Ettelt, 195 AD3d 1453 (4th Dept 2021); Trazzera v. Trazzera, 2021 NY App. Div. LEXIS 6210 [*3](2d Dept 2021)(to modify an existing court-sanctioned custody agreement, there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interests of the child and custody determinations should generally be made only after a full and plenary hearing); Matter of Princetta S.S. v Felix Z.J., 173 AD3d 637 (1st Dept 2019)(change in circumstances sufficient to warrant a hearing to determine if modification of the parties' visitation schedule would be in the child's best interest).

In this Court's view, the father's relocation outside the geographic restriction contained in the agreement is a change in circumstances that could warrant the entire panoply of relief sought by the mother. However, in some respects, the agreement lacks clarity, as there is no sanction suggested in the four corners of the agreement if either parent violates the geographic restriction. There is also competing evidence of the impacts of the change in the father's residence on the children. The mother suggests it disrupts their schedules. The father suggests that the children enjoy access to the home and yard in Batavia. The attorney for the children indicates that children, while supporting the father's move to Batavia, favored a modification of the visitation plan to limit the number of transitions and limit the trips back and forth during the overnights in Batavia.

Some New York appellate courts that have considered breaches of geographic restriction have held that, where the parties have negotiated a provision barring relocation, "the best interests of the children required enforcement of the custody arrangement negotiated by the parties" See Kasal v. Kasal, 297 AD2d 624, 626 (2nd Dept 2002). However, that judicial preference to "hold-a-party-to-the-terms-of-their-bargain" in a geographic restriction in a settlement agreement seems to have faded in the appellate landscape. Recently, the Appellate Division, Fourth Department, in Menard v Roberts, 194 AD3d 1427, 1427-28 (4th Dept 2021), held that the family court properly refused to impose a penalty for the mother's violation of a consent order by moving to another county. The appeals court refused to hold the mother in contempt or order compliance with the geographic limitation provision in the agreement because the father had verbally consented to the move and later changed his mind. This recent decision suggests that the appeals court tends to be restrained in requiring parental compliance with geographic restrictions in settlement agreements. This attitude by the Fourth Department is consistent with its cautious approach in other cases in which one parent has relocated in the face of a geographic restriction clause, especially if a parent seeks to change custody and visitation as a result of the relocation. The Appellate Division has held that a parent, seeking relocation, was required to allege facts sufficient to " 'establish the need for a hearing on the issue whether [her] relocation is in the best interests of the child.' " Matter of Betts v Moore, 188 AD3d 1747 (4th Dept 2020); Matter of Johnston v Dickes, 178 AD3d 1454, 1455 (4th Dept 2019). In those cases and others, the appellate court has noted that any reviewing court must use the relocation analysis in Tropea v. Tropea, 87 NY2d 727 (1996) in which the court must consider the best interests of the child, including whether, as result of the relocation, "the child's life would be enhanced economically, emotionally and educationally' by the proposed relocation." See also Matter of Hill v Flynn, 125 AD3d 1433, 1434 (4th Dept 2015); Lauzonis v. Lauzonis, 120 AD3d 922 (4th Dept 2014); Chancer v. Stowell, 5 AD3d 1082 (4th 2004). Based on these decisions, it seems that the father's undisputed violation of the agreement is — in itself — not a basis for changing custody or visitation but merely a factor to be considered in discerning the best interests of the children [*4]under a relocation analysis.

Those authorities crimp the ability of this Court to take any action on either the father or the mother's application until a full hearing is conducted. The Court is nonetheless struck by the seeming incongrutiy of that result. Here, the mother and father both shared the same concern for stability for their children. In an earlier phase of this matter, the mother alleged that she moved from Webster — on the east side of the City of Rochester — to the Spencerport/Brockport area — on the west side of Rochester — to facilitate the equal visitation/shared custody plan. The mother wanted the children to remain in the same school district and live close to their father to accommodate their increasingly busy lives in school and in extracurriculars. The father wanted the same stability, arguing in his application that the mother had repeatedly moved, changing the children's schools repeatedly. As a consequence, both parents seemingly welcomed the geographic restriction in the settlement agreement. Both parents saw the mutual restriction on relocation as ensuring stability and continuity for the children. Now, because the father has access to what he contends is lower cost housing and his extended family in a more distant community, he seeks to vitiate and withdraw his prior consent. The mother contends that the father had intended to move to Batavia ever since the divorce and negotiated the geographic restriction in bad faith. But, it is undisputed, at this stage, that he has violated the agreement. This Court, under the precedents above and in advance of a hearing, has no access to any relief for the mother under the agreement, even though the restriction that she bargained for is being violated. There is also no evidence before this Court that the mother has sustained any financial harm as a consequence of the father's breach. The attorney for the children has been actively invovled in negotiations between the two parents, but no resolution has occurred.

However, while this Court cannot grant ultimate relief, it can — and will — grant that part of the mother's relief which seeks an award of attorneys fees. It is undisputed that the father breached the agreement by moving outside the geographic area as defined by the agreement. How that breach of the agreement will be incorporated into any future determination is left to another judge when this matter is transferred. This Court will not countenance the father's undisputed breach of a provision in the agreement that he expressly approved. There must be a consequence under Section 238 of the Domestic Relations Law, which allows the Court in its discretion to require either party to pay counsel fees and fees and expenses directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires having regard to the circumstances of the case and of the respective parties. Holsberger v Holsberger, 154 AD3d 1208 (3d Dept 2017); S.P. v. M.P., 2019 NYLJ LEXIS 571 (Sup. Ct. Richmond Cty 2019). The award of attorneys fees under the Domestic Relations Law depends on the relative merits of the parties' positions, and if either party engaged in conduct that resulted in a delay of the proceedings or unnecessary litigation. See Vitale v. Vitale, 112 AD3d 614 (2d Dept 2013); Caricati v Caricati, 181 AD3d 1279 (4th Dept 2020)(the court may also consider the relative merits of the parties' legal and factual positions in the litigation). Interim fees under Section 238(a) can be awarded to make sure both parties can compete in the arena and not in anticipation of any specific outcome. As a result and specifically in view of the father's acknowledged breach of the agreement, this Court awards the mother $4,000 for interim attorneys fees incurred by the wife in the earlier phases of this proceeding and an additional $2500 to allow her to secure adequate future counsel for the hearing on the [*5]husband's relocation petition and her enforcement petition. Those fees should be paid within 30 days of the order from this decision.

In conclusion, restricted by the authorities cited above, this Court finds that there is evidence of a change in circumstances sufficient to require that all pending matters — including a final award of attorneys fees — be referred to to a hearing before a new justice. The matter shall be transferred and the parents informed of the hearing date at the earliest convenience for a new justice.

DATED: December 13, 2021


Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:The father claims that the mother's acquiesce in allowing the father to handle all the transportation is a violation of the agreement. This Court notes that the father does not seek, in his current application, any determination of whether the mother has violated this provision of the agreement and further the mother's mere acquiescence in allowing the father to transport the children can hardly be considered a violation of the agreement. The father has, through his conduct, simply waived his right to insist on the mother's assistance in providing the needed transportation.

Footnote 2:The father also alleges that the mother, prior to the agreement, moved frequently and the children have changed schools frequently in recent years. These alleged facts would seem to justify both parents consenting to the geographical restriction in their agreement because the agreement prohibits the mother from moving to the same degree as the father and secures the children's stability in their current school district.

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