Opinion
2014-08-8
Joseph LAUZONIS, Plaintiff–Respondent, v. Colleen LAUZONIS, Defendant–Appellant.
Flaherty & Shea, Buffalo (Kathleen E. Horohoe of Counsel), for Defendant–Appellant. Leonard G. Tilney, Jr., Lockport, for Plaintiff–Respondent.
Flaherty & Shea, Buffalo (Kathleen E. Horohoe of Counsel), for Defendant–Appellant. Leonard G. Tilney, Jr., Lockport, for Plaintiff–Respondent.
Laura A. Miskell, Attorney for the Children, Lockport.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, and WHALEN, JJ.
MEMORANDUM:
In this divorce action, defendant mother sought permission to relocate with the parties' children from Lewiston to Grand Island. An order of custody and visitation provided that “neither party shall relocate the children out of their current school district without written consent from the other parent or a court order approving of same.” At the time of entry of that order, the children attended school in the Lewiston–Porter School District in Niagara County. Plaintiff father thereafter cross-moved for sole custody of the children. Supreme Court denied defendant's motion and ordered a hearing on plaintiff's cross motion for sole custody. We agree with defendant that the court erred in denying her motion without conducting a hearing. We therefore modify the order accordingly, and we remit the matter to Supreme Court for a hearing to determine whether the relocation is in the children's best interests ( see Matter of Chambers v. Renaud, 72 A.D.3d 1433, 1435, 899 N.Y.S.2d 470).
It is well settled that relocation cases must be considered on a case-by-case basis “with due consideration of all 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[ren]” ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145). While a geographic restriction agreed to by the parties and included in a separation agreement “is a relevant factor to consider in determining the child[ren]'s best interests, it is not dispositive” ( Matter of Mineo v. Mineo, 96 A.D.3d 1617, 1618, 946 N.Y.S.2d 391 [internal quotation marks omitted]; see Tropea, 87 N.Y.2d at 741 n. 2, 642 N.Y.S.2d 575, 665 N.E.2d 145; Matter of Bobroff v. Farwell, 57 A.D.3d 1284, 1284–1286, 870 N.Y.S.2d 559; Carlson v. Carlson, 248 A.D.2d 1026, 1028, 670 N.Y.S.2d 297).
Here, the court failed to consider whether the proposed relocation was in the children's best interests, instead denying defendant's motion on the ground that “there [was] no change in circumstances warranting a hearing on the issue of defendant's relocation.” That was error ( see Matter of Chancer v. Stowell, 5 A.D.3d 1082, 1083, 773 N.Y.S.2d 702; see also Matter of Adams v. Bracci, 91 A.D.3d 1046, 1046–1047, 936 N.Y.S.2d 738, lv. denied18 N.Y.3d 809, 2012 WL 1033620). Generally, “[d]eterminations affecting custody and visitation should be made following a full evidentiary hearing” ( Matter of Naughton–General v. Naughton, 242 A.D.2d 937, 938, 662 N.Y.S.2d 956; see Matter of Pollard v. Pollard, 63 A.D.3d 1628, 1628, 881 N.Y.S.2d 564), and we conclude that the submissions of defendant in support of her motion “established the need for a hearing on the issue whether [her] relocation is in the best interests of the child[ren]” ( Matter of Stevens v. Stevens, 286 A.D.2d 890, 890, 730 N.Y.S.2d 751; see Liverani v. Liverani, 15 A.D.3d 858, 858–859, 788 N.Y.S.2d 874).
While no single factor is determinative in a relocation case, “economic necessity ... may present a particularly persuasive ground for permitting the proposed move” (Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145; see Matter of Thomas v. Thomas, 79 A.D.3d 1829, 1830, 913 N.Y.S.2d 456; Matter of Cynthia L.C. v. James L.S., 30 A.D.3d 1085, 1085–1086, 816 N.Y.S.2d 659). Here, defendant averred that she was unable to find appropriate, affordable housing or a suitable teaching position in the high-priced Lewiston area ( see Piccinini v. Piccinini, 103 A.D.3d 868, 870, 960 N.Y.S.2d 181; Matter of Eddington v. McCabe, 98 A.D.3d 613, 615, 949 N.Y.S.2d 734; Carlson, 248 A.D.2d at 1027, 670 N.Y.S.2d 297). Although plaintiff disputed several of defendant's factual assertions, particularly with respect to the extent of her job search, he did not assert that the proposed move would be detrimental to the children or to his relationship with the children, and he provided no reason for opposing the move, other than defendant's alleged failure to show a change in circumstances ( see Piccinini, 103 A.D.3d at 870, 960 N.Y.S.2d 181; see generally Tropea, 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145). The proposed relocation involves a distance of only about 17 miles, and there is no indication in the record that plaintiff's access to the children would be significantly affected by the move ( see Mineo, 96 A.D.3d at 1619, 946 N.Y.S.2d 391; Carlson, 248 A.D.2d at 1028, 670 N.Y.S.2d 297). Further, there is no indication in the record that the quality of the education provided by the Grand Island School District is inferior to that of the Lewiston–Porter School District, or that the children's lives would be enhanced educationally by remaining within the Lewiston–Porter School District ( see Mineo, 96 A.D.3d at 1619, 946 N.Y.S.2d 391; Carlson, 248 A.D.2d at 1028, 670 N.Y.S.2d 297; see also Bobroff, 57 A.D.3d at 1286, 870 N.Y.S.2d 559).
Contrary to the further contention of defendant with respect to plaintiff's cross motion, however, we conclude that plaintiff made “a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody order should be modified” ( Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1417–1418, 770 N.Y.S.2d 248 [internal quotation marks omitted]; see Matter of Dipaolo v. Avery, 93 A.D.3d 1240, 1241, 941 N.Y.S.2d 376; Matter of Bell v. Raymond, 67 A.D.3d 1410, 1411, 887 N.Y.S.2d 898). It is well established that “the continued deterioration of the parties' relationship is a significant change in circumstances justifying a change in custody” ( Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 805, 691 N.Y.S.2d 681, lv. denied94 N.Y.2d 790, 700 N.Y.S.2d 421, 722 N.E.2d 501; see Matter of Ingersoll v. Platt, 72 A.D.3d 1560, 1561, 899 N.Y.S.2d 517). Here, plaintiff asserted in support of his cross motion that there had been a “complete break[ ]down in communication” between the parties since entry of the custody order. According to plaintiff, defendant had him arrested on baseless grounds, filed a false child protective services report against him, and refused to discuss important decisions concerning the children's health, education, and counseling. Plaintiff further averred that defendant “actively tried to tarnish [his] reputation in the community,” disparaged him in the children's presence, and “actively trie[d] to alienate ... the children” from him ( see Matter of Fox v. Fox, 93 A.D.3d 1224, 1224–1225, 940 N.Y.S.2d 719; Matter of Ciannamea v. McCoy, 306 A.D.2d 647, 648, 760 N.Y.S.2d 774; Matter of Fiori v. Fiori [Appeal No. 1], 291 A.D.2d 900, 900, 738 N.Y.S.2d 265). Although defendant disputes plaintiff's assertions, “[i]t is well established that determinations affecting custody should be made following a full evidentiary hearing, not on the basis of conflicting allegations” ( Matter of Smith v. Brown, 272 A.D.2d 993, 993, 708 N.Y.S.2d 676; see Pollard, 63 A.D.3d at 1628, 881 N.Y.S.2d 564).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the first and third ordering paragraphs and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Niagara County, for further proceedings.