Opinion
Nos. 586 587 File No. 258204 Docket No. V-03633/22 Case Nos. 2022-02362 2023-00436
06-29-2023
In the Matter of Ulises R., Petitioner-Appellant, v. Elizabeth H.T., Respondent-Respondent.
Bruce A. Young, Brooklyn, for appellant. Kenneth M. Tuccillo, Hastings on Hudson, for respondent. The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
Bruce A. Young, Brooklyn, for appellant.
Kenneth M. Tuccillo, Hastings on Hudson, for respondent.
The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
Before: Kern, J.P., Moulton, Mendez, Shulman, Rodriguez, JJ.
Order, Family Court, Bronx County (Jessica I. Bourbon, J.), entered on or about November 15, 2022, which, to the extent appealed from, in effect, granted petitioner father's motion for reargument and renewal, and upon reargument and renewal, adhered to its prior order, entered on or about May 2, 2022, to the extent it denied the father's motion to prohibit respondent mother from relocating to Texas with the subject child, unanimously affirmed, without costs. Appeal from order, entered on or about May 2, 2022, unanimously dismissed, without costs, as superseded by the appeal from the order entered on or about November 15, 2022.
The part of the November 15, 2022 order denying reargument effectively granted reargument and, upon reargument, adhered to a prior determination. Accordingly, it is appealable (see Jean v Chinitz, 163 A.D.3d 497, 499 [1st Dept 2018]; Pezhman v Chanel, Inc., 126 A.D.3d 497 [1st Dept 2015]).
Upon reargument, the court properly adhered to its original decision that permitting the mother to relocate to Texas with the subject child would serve the child's best interests, as the father failed to show that the court overlooked or misapprehended any applicable facts or law in deciding the prior motion (see CPLR 2221[d][2]).
The father received the benefit of a full and plenary hearing (see S.L. v J.R., 27 N.Y.3d 558, 563 [2016]). The hearing was held over the course of several days, where the parties were represented by counsel, and the court heard the testimony of three witnesses who were subject to cross-examination, received documentary evidence, conducted an in camera interview of the subject child, and heard the parties' summations. Thus, the court possessed sufficient information to render an informed decision as to whether relocation would serve the child's best interests.
Because this case involved an initial custody determination, and there was no prior custody order, the court correctly determined that the relocation factors set forth in Matter of Tropea v Tropea (87 N.Y.2d 727 [1996]) did not govern, and that the effect of the mother's relocation was but one factor in determining the child's best interests (see Mathiew v Michels, 180 A.D.3d 403, 403 [1st Dept 2020]; Arthur v Galletti, 176 A.D.3d 412, 413 [1st Dept 2019], lv denied 35 N.Y.3d 1002 [2020]). "[I]n reviewing relocation and other custody issues, deference is to be accorded to the determination rendered by the factfinder, unless it lacks a sound and substantial basis in the record" (Matter of David J.B. v Monique H., 52 A.D.3d 414, 415 [1st Dept 2008] [internal quotation marks omitted]).
The court's decision to permit the mother to relocate to Texas with the child has a sound and substantial basis in the record. Its credibility determinations during the fact-finding hearing are entitled to great deference (see Matter of Melind M. v Joseph P., 95 A.D.3d 553, 555 [1st Dept 2012]). The evidence shows that the mother had been the primary caregiver since the child's birth, while the father had little involvement in the child's life and never supported the child financially. The mother found a stable job with full benefits in Texas, had family support there, and had secured an apartment and found a suitable school for the child. The mother testified that moving to Texas would alleviate much of her financial stress, which, as the record reflected, was attributable to the father's lack of support. In contrast, the father's employment and financial situation were unstable. He admittedly worked part-time, even though he had multiple underage children who needed financial support and was living in the basement of his grandmother's home. The father's grandmother was over 100 years old, and it was unclear whether the father could remain in her house in the event of her passing. Contrary to the father's contention, the court adequately considered the child's relationship with the father's extended family and weighed it against her need for a stable home and financial support.
As to the father's motion for renewal (CPLR 2221[e]), renewal was not a proper vehicle for obtaining relief from the judgment (see Matter of Curry v Vertex Restoration Corp., 252 A.D.2d 360, 360 [1st Dept 1998]), and the court should have treated the motion as one pursuant to CPLR 5015 (see Maddux v Schur, 53 A.D.3d 738, 739 [3d Dept 2008]). Nevertheless, regardless of which standard is applied to the motion, the court correctly determined that the father failed to demonstrate that the newly discovered evidence could not, with due diligence, have been discovered earlier or that it would have changed the prior determination if presented during the fact-finding hearing.
We have considered the father's remaining arguments and find them unavailing.