Kevin McK v. Elizabeth A.E.

111 A.D.3d 124, 972 N.Y.S.2d 25

This text of 111 A.D.3d 124 (Kevin McK v. Elizabeth A.E.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kevin McK v. Elizabeth A.E., 111 A.D.3d 124, 972 N.Y.S.2d 25 (N.Y. Ct. App. 2013).

Opinion

OPINION OF THE COURT

Saxe, J.

In this relocation case, where respondent mother, Elizabeth E., seeks permission to move with the parties’ child to Oxford, Mississippi, we are once again confronted with the problem of balancing a child’s need for the ongoing presence of both parents in his daily life, with the custodial parent’s proven inability to support herself and the child beyond the subsistence level here in New York.

[126]*126Facts

The parties never married, but were intimately involved for 10 years, during which time their son, Lucas, was born, on January 6, 2003. The father, Kevin McK., moved into the mother’s apartment a few months prior to the child’s birth, and moved out in November 2007, when the child was about 4x/2 years old. The mother filed a custody petition in December 2007, and was awarded temporary custody on January 8, 2008; the father filed a custody petition shortly thereafter. Later that year, the mother filed a second petition, seeking to modify the temporary custody order to permit her to relocate with the child to Oxford, Mississippi.

Trial on the issues of custody and relocation commenced on or about November 18, 2009, and was conducted on 13 days over the course of 2V2 years. The mother testified that from approximately 1989 through 2007, her primary source of income was from her employment at the Claremont Riding Academy as a horseback riding instructor, earning approximately $20 per hour, plus tips and commissions. Between 2003 and 2007, she earned approximately $20,000 per year from her work at Claremont, sometimes closer to $30,000. During that period, she also earned approximately $5,000 from a book she published, $2,400 from teaching writing classes at the Jewish Community Center (JCC), in Manhattan, and approximately $5,000 per summer teaching at a riding camp in Mississippi.

However, in April 2007, Claremont closed, and the mother lost her job. Although she sought employment as a riding instructor in the New York metropolitan area, she was only able to find work one day per week, at a stable in Westchester, with a round-trip commute of approximately four hours; she found that the cost of the commute exceeded her earnings from the job. She was unsuccessful in her attempts to find other riding jobs or other writing assignments. She still taught a small number of writing classes at the JCC, earning $4,500 between 2007 and 2011, and found some small editing jobs from which she earned less than $1,000 in total.

From the time Claremont closed in April 2007 until November 2007, and again in 2009 and 2010, the mother collected $300 per week in unemployment benefits, but she has not been eligible for those benefits since June 2010. In addition, between June 2010 and June 2011, when the mother was entitled to $732 per month in child support from the father, payments were almost always late, and several payments were missed [127]*127entirely between November 2010 and February or March 2011. Support arrears in excess of $6,000 had accrued by June 2011, which the father paid off after a one year delay, only after the mother filed a violation petition. He has not made any further support payments since then.

Due to the missed child support payments and increases in her rent since 2007, the mother testified that she was barely able to make ends meet, so that to cover her expenses, she had borrowed $10,000 from a friend, as well as $1,800 from the Author’s League Fund, and some smaller amounts from her parents, as well as drawing down on her savings, which decreased from approximately $25,000 to $10,000. Essentially, she has supported herself and the parties’ child on a combination of her meager earnings, irregular child support payments, unemployment benefits, food stamps, loans from friends and family, and by depleting her savings.

The mother’s tax returns were admitted into evidence. According to the returns, in 2007, she earned approximately $31,486; in 2008, approximately $8,074; in 2009, approximately $16,000; and in 2010, approximately $13,000.

The mother established that two stables in Oxford, Mississippi, have offered her year-round employment as a horse trainer and riding instructor. She estimated that, were she to relocate to Mississippi, her expenses would be reduced by approximately 75%, and the combined income from those jobs would exceed $2,000 per month. Testimony from her own mother, the child’s grandmother, who lives in Oxford, Mississippi, reflected that if the mother and child are permitted to relocate, the child will have the benefit of a close relationship with his grandparents and cousins as well as other children his age with whom he has developed friendships during previous summers spent in Mississippi.

Oxford, Mississippi was described as a university town, a “safe, wonderful community of loving, caring people,” with an exceptional public school, which is more highly rated than his current school in Manhattan. The child would have the opportunity to play in the yard, ride the tractors, and help with the horses. The mother would have emotional and financial support and would no longer have to worry about paying the bills, and an apartment over the maternal grandparents’ garage would be made available to the father for free any time he wanted to visit the child.

The court-appointed forensic psychologist, Dr. N.G. Berrill of the New York Center for Neuropsychology and Forensic [128]*128Behavioral Science, testified that if the child were to move to Mississippi due to financial circumstances, he would be able to make the necessary adjustment and, provided that ample contact was permitted between the child and the father, such a move would not be damaging to the child. Dr. Berrill did not believe that the mother was moving to Mississippi to interfere with the child’s relationship with the father. To the contrary, she seemed to appreciate that the child has a positive relationship with the father. Dr. Berrill further noted that he found no evidence that the mother was “badmouthing” the father or attempting to alienate him from the child.

The father’s own testimony cogently demonstrated that the mother would not be able to rely on him for steady and current payments of support. Although he claimed to have filed income tax returns, he could not recall whether he had filed tax returns in the years 2006, 2007 and 2008, and testified that he had “no idea” what income he had reported, and that he “would not be able even to begin” to put together a list of his “various sources of income” that “varie[d] week to week.” Nor could he provide an income range for his earned income. While he does not have regular employment, he stated that he was starting a newspaper called the New York Bulletin, which had purportedly received $200,000 in funding in May 2011, which funding he used to satisfy his debts to the IRS and other people.

He refused to estimate his average monthly expenses. He asserted that he pays his rent by bartering personal services. He did not provide a lease for the apartment in which he was living in 2010, but testified that he was responsible for rent of $3,200 per month, although on cross-examination it was revealed that he had reported to the Support Magistrate that his rent was $1,000 per month.

Although the father claimed to be current on his child support obligations, a printout admitted into evidence indicated that as of January 2012 he was in arrears in the amount of $2,196.

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Bluebook (online)
111 A.D.3d 124, 972 N.Y.S.2d 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kevin-mck-v-elizabeth-ae-nyappdiv-2013.