Opinion
March 22, 1993
Appeal from the Supreme Court, Queens County (Fisher, J.).
Ordered that the order is reversed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a further hearing and new determination in accordance herewith.
The plaintiff made a motion to modify the parties' stipulation of settlement, as well as the judgment of divorce, so as to allow her to move to Cleveland, Ohio, together with the parties' two children. In seeking this relief, the plaintiff averred that her new husband could no longer find "suitable" work in New York, that his previous career in New York was no longer "lucrative", and that he had therefore decided to "go into computer graphics" working in a family-owned business located in Cleveland.
The assertions contained in the plaintiff's moving papers, including those noted above, do not establish that the relocation of the plaintiff's husband to Cleveland is, or was, warranted as a matter of actual economic necessity, as opposed to mere economic advantage. These assertions, without more, may not properly serve as the basis for a finding of exceptional circumstances. "[A] desire for economic betterment, as opposed to economic necessity, does not constitute an exceptional circumstance sufficient to justify a move that would significantly curtail visitation by the [children's] noncustodial parent" (Leslie v. Leslie, 180 A.D.2d 620, 622; see also, Elkus v Elkus, 182 A.D.2d 45; Sanders v. Sanders, 185 A.D.2d 716; Matter of Bonfiglio v. Bonfiglio, 134 A.D.2d 426; Morgano v. Morgano, 119 A.D.2d 734; cf., Hemphill v. Hemphill, 169 A.D.2d 29).
Prior to deciding the plaintiff's motion and the defendant's cross motion, the Supreme Court properly conducted a hearing. However, the scope of that hearing was essentially limited to expert psychological testimony relating to the effect which this relocation might have on the children, and the testimony was not sufficient to allow a determination as to the best interests of the children. The scope of the hearing should have been expanded so as to include the taking of testimony on the other matters placed in issue by the defendant. These matters include whether the plaintiff's relocation to Ohio can be justified as a matter of economic necessity so as to satisfy the "exceptional circumstances" standard. Bracken, J.P., Balletta, O'Brien and Ritter, JJ., concur.