Opinion
820 CAF 22-01641
11-17-2023
In the Matter of Sandy B. MARTIN, Petitioner-Respondent, v. Gary J. MARTIN, Respondent-Appellant.
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT. D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PETITIONER-RESPONDENT.
KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, GREENWOOD, NOWAK, AND DELCONTE, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order entered after a hearing that, inter alia, awarded petitioner mother sole legal and physical custody of the parties’ children and granted the mother permission to relocate with the children to Tennessee. We affirm.
Initially, we conclude that the father "waived his challenge to the authority of the Court Attorney Referee to hear and determine the petition[ ] before him" ( Matter of Sturnick v. Hobbs , 191 A.D.3d 1375, 1375, 141 N.Y.S.3d 811 [4th Dept. 2021] ).
Contrary to the further contention of the father, we conclude that the Referee properly considered the factors set forth in ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740-741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ) in determining that the mother met her burden of establishing by a preponderance of the evidence that the proposed relocation is in the children's best interests, and we further conclude that the Referee's determination has " ‘a sound and substantial basis in the record’ " ( Matter of Hill v. Flynn , 125 A.D.3d 1433, 1434, 3 N.Y.S.3d 249 [4th Dept. 2015], lv denied 25 N.Y.3d 910, 2015 WL 3618843 [2015] ). Here, the mother testified at the hearing that she has been the primary caregiver of the children and that her health has been steadily declining. She further established that the maternal grandmother, who moved to Tennessee in 2021, has provided her with extensive financial assistance, as well as assistance in caring for herself and the children, and that the maternal grandmother would continue to do so if the mother were to relocate closer to the maternal grandmother (see Matter of Ramirez v. Velazquez , 74 A.D.3d 1756, 1757, 902 N.Y.S.2d 282 [4th Dept. 2010] ). Further, the record establishes that the father has no "accustomed close involvement in the children's everyday life" ( Tropea , 87 N.Y.2d at 740, 642 N.Y.S.2d 575, 665 N.E.2d 145 ), and thus we conclude that the need to "give appropriate weight to ... the feasibility of preserving the relationship between the noncustodial parent and [the] child[ren] through suitable visitation arrangements" does not take precedence over the need to give appropriate weight to the necessity for the relocation ( id. at 740-741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). We have considered the father's remaining contentions and conclude that none warrants modification or reversal of the order.
All concur except Nowak, J., who dissents and votes to reverse in accordance with the following memorandum:
I agree with the majority that respondent father waived his challenge to the authority of the Court Attorney Referee to hear and determine the petition at issue. Contrary to the majority's conclusion, however, I agree with the father that the Referee erred in determining that petitioner mother met her burden of establishing by a preponderance of the evidence that the proposed relocation is in the children's best interests, and thus, in my view, the Referee's determination lacks a sound and substantial basis in the record (see Matter of Gasdik v. Winiarz , 188 A.D.3d 1760, 1760-1761, 136 N.Y.S.3d 612 [4th Dept. 2020] ). I therefore respectfully dissent.
In ( Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ), the Court of Appeals set forth the factors that should be considered in determining an application to relocate and emphasized that "no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome" ( id. at 738, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). The best interests of the children are the predominant concern and, in making that determination, consideration and appropriate weight must be given to all of the relevant factors (see Matter of Fleisher v. Fleisher , 151 A.D.3d 1768, 1769, 56 N.Y.S.3d 406 [4th Dept. 2017], lv denied 30 N.Y.3d 901, 2017 WL 4542667 [2017] ).
In his decision, the Referee recited the relevant Tropea factors, but erred in considering and applying those factors to the case at bar. In particular, the Referee gave disproportionate weight to certain factors and largely ignored the impact of the move on the children's future contact with the father despite that factor weighing heavily against relocation, given the distance between Clinton County, New York, where the father resides, and Tennessee (see Matter of Barlow v. Smith , 94 A.D.3d 1437, 1438, 942 N.Y.S.2d 839 [4th Dept. 2012] ; Matter of Ramirez v. Velazquez , 91 A.D.3d 1346, 1347, 937 N.Y.S.2d 504 [4th Dept. 2012], lv denied 19 N.Y.3d 802, 2012 WL 1538354 [2012] ; Matter of Jones v. Tarnawa , 26 A.D.3d 870, 871, 809 N.Y.S.2d 742 [4th Dept. 2006], lv denied 6 N.Y.3d 714, 816 N.Y.S.2d 749, 849 N.E.2d 972 [2006] ). "[D]enying visitation to a natural parent is a drastic remedy and should only be done where there are compelling reasons" ( Parker v. Ford , 89 A.D.2d 806, 806-807, 453 N.Y.S.2d 465 [4th Dept. 1982] ). "[A]n individual's undesirable personal characteristics and habits cannot be relied on to deny visitation, unless there is a specific finding that the parent's conduct will have a detrimental impact on the child" ( id. at 807, 453 N.Y.S.2d 465 ). Here, the Referee made no such finding. Nevertheless, the Referee effectively eliminated the father's access by suspending his right to in-person visitation indefinitely.
Moreover, the mother did not establish that the children's lives will be enhanced economically, emotionally, or educationally by the move, even if the move would not diminish them (see Matter of Shepherd v. Stocker , 159 A.D.3d 1441, 1442, 73 N.Y.S.3d 693 [4th Dept. 2018] ; Matter of Seyler v. Hasfurter , 61 A.D.3d 1437, 1437, 877 N.Y.S.2d 722 [4th Dept. 2009] ; cf. Matter of Scialdo v. Cook , 53 A.D.3d 1090, 1092, 862 N.Y.S.2d 238 [4th Dept. 2008] ). The mother offered no testimony that the children would receive a better education in Tennessee, and there was no testimony comparing schools in each location (see generally Gasdik , 188 A.D.3d at 1762-1763, 136 N.Y.S.3d 612 ).
The mother also offered no explanation as to why she and the children would be better cared for in Tennessee by the maternal grandmother—who testified that she works approximately 45 to 50 hours per week at multiple jobs in addition to caring for her son's newborn child—than in New York by the certified caregiver the mother was approved for but has never utilized (see generally Matter of Hirschman v. McFadden , 137 A.D.3d 1612, 1613, 27 N.Y.S.3d 304 [4th Dept. 2016], lv denied 27 N.Y.3d 909, 2016 WL 3435294 [2016] ), particularly in light of the mother's unrefuted testimony that her seven-year-old daughter "does most of the taking care of" herself and of her four-year-old brother. Finally, the mother failed to establish that the children's lives would be enhanced economically. Indeed, the mother testified that she would be reliant upon the maternal grandmother to support her financially regardless of whether she moved, and there was no testimony that the mother would be eligible for the same benefits in Tennessee that she is currently receiving through New York State. In light of the foregoing, I do not believe that the mother met her burden, and I would thus reverse the order and dismiss the petition.