JUNE 8, 2022 DECISIONS

Matter of Thomas v. Mobley, 2020-06449

In 2015, the parties agreed to an Order which awarded them joint custody of their child, with residential custody to the mother, and parenting time to the father, and a restriction that neither party may relocate the child outside of Suffolk or Nassau County without the other party’s consent or court permission.  The mother petitioned in 2019 to modify the order to permit her to relocate with the child to Georgia.  Following a hearing, the Family Court granted the mother’s petition, and the father appealed.

Although the Family Court failed to articulate a determination on the issue of a change in circumstances prior to the hearing, the Second Department may make its own findings since “this Court’s authority is as broad as that of the hearing court” and the record is sufficient to allow review (Matter of Newton v. McFarlane, 174 AD3d at 80).

The mother demonstrated a change in circumstances.  She showed evidence that, since the custody order was issued, the safety in the neighborhood had declined, requiring her to move to protect the child, which resulted in a drastic increase in her living expenses.  She presented that she had a job opportunity in Georgia with a higher salary than what she could earn in New York and that her living expenses would be lower there.

The mother established by a preponderance of the evidence that relocating was in the child’s best interests.  The reasons for relocating included providing the child with a better environment and increased financial stability.  The evidence demonstrated that the mother was the primary caregiver; that the father was not involved in the child’s day-to-day life, education, or healthcare; and that the father kept in contact with the child more through the telephone, rather than through in-person visits, which he could continue if the child relocated.

The evidence also showed that the child liked the area where the mother sought to move, he had extended family in Georgia, several of the mother’s family members who regularly saw the child were also moving to Georgia, and the child could visit the father during school breaks.  The mother demonstrated a change in circumstances warranting a full hearing, and the mother established by a preponderance of the evidence at that hearing that the relocation would be in the child’s best interests (see Assad v. Assad, 200 AD3d at 833-834; Matter of Newton v. McFarlane, 174 AD3d at 76; Matter of Banks v. DeLeon, 174 AD3d at 599).

The father is correct in that the Family Court should have set a more detailed schedule for parental access and should have specified how the parties are to pay for travel expenses.  The matter is remanded to set forth a more detailed schedule for parental access to allow the parents to plan their travel and visits in advance.

 

Ruffino v. Serio, 2019-12311

In a post-judgment divorce case, the plaintiff moved pursuant to Judiciary Law § 753(A)(3) and Domestic Relations Law § 245, to hold the defendant in contempt for violating the maintenance provision in the parties’ settlement, which was incorporated in a Judgment of Divorce, by paying only $1,200 for monthly maintenance.  The stipulation provided that the defendant must use his best efforts to make monthly maintenance payments of $2,000, however, in any event, he was required to meet monthly minimum payments of $400.  The lower court denied the plaintiff’s motion.  The plaintiff appealed.

The record here does not support the plaintiff’s argument that the defendant disobeyed a clear and unequivocal mandate in the stipulation (see Venables v. Rovegno, 195 AD3d at 881; Cover v. Cover, 173 AD3d 970, 971; Dreher v. Martinez, 155 AD3d 688, 689).  The order is affirmed insofar as appealed from.