Opinion
2017–09416 2017–09418 Docket No. V–00875–13/16A
07-10-2019
In the Matter of Mary LOUIE, Appellant, v. Ian PLISSNER, Respondent.
Francine Scotto, Staten Island, NY, for appellant. Eric M. Gansberg, Staten Island, NY, for respondent. Cheryl Charles–Duval, Brooklyn, NY, attorney for the child.
Francine Scotto, Staten Island, NY, for appellant.
Eric M. Gansberg, Staten Island, NY, for respondent.
Cheryl Charles–Duval, Brooklyn, NY, attorney for the child.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements, the decision is vacated, the petition is reinstated, and the matter is remitted to the Family Court, Richmond County, for a hearing and thereafter a new determination of the mother's petition.
The parties, Mary Louie (hereinafter the mother) and Ian Plissner (hereinafter the father), who were never married, have one child together, who was born in 2007. The parties' so-ordered stipulation of settlement (hereinafter the stipulation) provides that the mother has legal and primary residential custody of the subject child and establishes liberal parental access for the father. In relevant part, the stipulation further states that "the Mother's stated intent to relocate shall be deemed a significant change of circumstances." In November 2016, the mother petitioned, inter alia, to modify the stipulation so as to permit her to relocate with the child from Staten Island to Brooklyn, in order to live with her mother. The father moved to dismiss the petition, contending that the mother failed to sufficiently allege a change of circumstances. In an order dated August 10, 2017, upon a decision of the same date, the Family Court dismissed the mother's petition, without a hearing. The mother appeals.
In order to modify an existing court-approved custody arrangement, there must be a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests of the child (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 103 N.Y.S.3d 445, 2019 N.Y. Slip Op. 04386, 2019 WL 2363541 [2d Dept. 2019] ; Matter of Williams v. Jenkins, 167 A.D.3d 758, 760, 90 N.Y.S.3d 81 ; Gentile v. Gentile, 149 A.D.3d 916, 918, 52 N.Y.S.3d 420 ). Generally, a custodial parent's request to relocate some significant distance with a child over the noncustodial parent's objection requires the custodial parent to demonstrate that relocating is in the child's best interests (see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; Matter of Dockery v. Reid–O'Garro, 161 A.D.3d 1147, 1147, 77 N.Y.S.3d 480 ; Martin v. Martin, 139 A.D.3d 916, 917, 33 N.Y.S.3d 303 ). Here, the mother demonstrated sufficient merit to the relocation request to warrant a hearing on so much of her petition as sought to relocate with the subject child (see Matter of Dockery v. Reid–O'Garro, 161 A.D.3d at 1147, 77 N.Y.S.3d 480 ; Martin v. Martin, 139 A.D.3d at 917, 33 N.Y.S.3d 303 ; Abbott v. Abbott, 96 A.D.3d 887, 888, 946 N.Y.S.2d 511 ). At that hearing, the court must consider each relocation request " ‘on its own merits 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’ " ( Matter of Williams v. Jenkins, 167 A.D.3d at 760, 90 N.Y.S.3d 81, quoting Matter of Tropea v. Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145 ).
Further, the mother demonstrated that a hearing was warranted to clarify certain ambiguous terms of the stipulation. When the terms of a stipulation of settlement are clear and unambiguous, "the general rule is that the intent of the parties is to be found within the four corners of the agreement, and not from extrinsic evidence" ( Boster–Burton v. Burton, 92 A.D.3d 909, 910, 940 N.Y.S.2d 111 [internal quotation marks omitted]; see Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258 ). "Whether an agreement is ambiguous is a question of law for the courts" ( Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 ; see W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 ). Here, the relevant provisions of the stipulation are ambiguous as to which party has parental access with the child on certain holidays and as to which party has final decision-making power over the child's education and medical care. Thus, a hearing is needed to resolve these ambiguities.
Accordingly, we remit the matter to the Family Court, Richmond County, for a hearing on the mother's relocation request and to determine the parties' intent with regard to the provisions of the stipulation relating to parental access on holidays and final decision-making power over the child's education and medical care, and thereafter, a new determination of the mother's petition (see Leibowitz v. Leibowitz, 143 A.D.3d 675, 677, 38 N.Y.S.3d 252 ; Salinger v. Salinger, 125 A.D.3d 747, 749, 4 N.Y.S.3d 81 ; Boster–Burton v. Burton, 92 A.D.3d at 910, 940 N.Y.S.2d 111 ; Bianco v. Bianco, 21 A.D.3d 918, 919, 801 N.Y.S.2d 338 ).
In light of our determination, the mother's remaining contention need not be reached.
CHAMBERS, J.P., ROMAN, HINDS–RADIX and LASALLE, JJ., concur.