Howe v. Howe

Appellate Division of the Supreme Court of New York

Howe v. Howe

256 A.D.2d 549, 682 N.Y.S.2d 876, 1998 N.Y. App. Div. LEXIS 14033

Appellate Division of the Supreme Court of the State of New York·Decided December 28, 1998·Published

Opinion

—In an action for a divorce and ancillary relief, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered February 27, 1998, as, upon reargument, adhered to a prior order [550]*550of the same court entered August 26, 1997, which denied her motion to relocate her residence and that of the parties’ infant children.

Ordered that the order is reversed insofar as appealed from, with costs, and the matter is remitted for further proceedings consistent herewith.

A relocation request may be granted if it is demonstrated that relocation would be in the best interests of the children (see, Matter of Tropea v Tropea, 87 NY2d 727, 736; Matter of Blackburn v Santiago, 250 AD2d 676). Given the conflicting allegations in the parties’ affidavits, the court should not have denied, without a hearing, the plaintiffs motion for an order allowing her to relocate to Colorado (cf., Matter of Ann C. v Debra S., 221 AD2d 338). Accordingly, the matter is remitted for a hearing to determine the best interests of the children. The court is directed to appoint a Law Guardian to represent the children. Miller, J. P., Ritter, Sullivan and Pizzuto, JJ., concur.

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—In an action for a divorce and ancillary relief, the plaintiff appeals from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered February 27, 1998, as, upon reargument, adhered to a prior order [550]*550of the same court entered August 26, 1997, which denied her motion to relocate her residence and that of the parties’ infant children.

Ordered that the order is reversed insofar as appealed from, with costs, and the matter is remitted for further proceedings consistent herewith.

A relocation request may be granted if it is demonstrated that relocation would be in the best interests of the children (see, Matter of Tropea v Tropea, 87 NY2d 727, 736; Matter of Blackburn v Santiago, 250 AD2d 676). Given the conflicting allegations in the parties’ affidavits, the court should not have denied, without a hearing, the plaintiffs motion for an order allowing her to relocate to Colorado (cf., Matter of Ann C. v Debra S., 221 AD2d 338). Accordingly, the matter is remitted for a hearing to determine the best interests of the children. The court is directed to appoint a Law Guardian to represent the children. Miller, J. P., Ritter, Sullivan and Pizzuto, JJ., concur.

Howe v. Howe, 256 A.D.2d 549, 682 N.Y.S.2d 876, 1998 N.Y. App. Div. LEXIS 14033 (N.Y. Ct. App. 1998).

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Opinion

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