Martinez v. Konczewski

85 A.D.2d 717, 445 N.Y.S.2d 844, 1981 N.Y. App. Div. LEXIS 16542

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1981
• Status: Published

Opinions

In an action in which a divorce was granted, the parties cross-appeal from stated portions of an order of the Supreme Court, Queens County (Zelman, J.); dated May 13,1981, which, inter alia, denied the defendant father’s application to enjoin the plaintiff from removing their child from New York State and relocating in Florida and modified the visitation rights of the defendant. Order modified, as a matter of discretion, by adding provisions thereto providing that (1) the plaintiff is to bear the reasonable expense of the defendant’s air fare for all of the indicated visitation periods actually spent in Florida and directing the plaintiff to furnish the defendant with a round-trip ticket or its monetary equivalent upon seven days’ written notice, and (2) the plaintiff is to bear the reasonable travel expenses associated with the child’s visits to New York in accordance with paragraphs “(b)”, “(c)” and “(d)” of the fourth decretal paragraph. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Although otherwise in agreement with Special Term that the instant case presents one of those admittedly rare situations in which the legitimate obligations undertaken by a divorced parent who marries anew require “a dramatic change of locale” (Weiss v Weiss, 52 NY2d 170, 177; Daghir v Daghir, 82 AD2d 191, 194; cf. Cmaylo v Cmaylo, 76 AD2d 898), which is not inconsistent with the best interests of the child, the preservation of those “best interests” requires a further liberalization of the visitation provisions of the order under review. The indicated changes are intended to render the existing schedule of revised visitation more meaningful to both the child and the noncustodial parent by attempting to insure the frequency, quality and regularity of such visits (see Daghir v Daghir, supra; see, also, Weiss v Weiss, supra, p 175). They are not intended as a punishment to the custodial parent or to render her relocation more burdensome, but rather are dictated by the economic realities of the situation (cf. Weiss v Weiss, supra, pp 176-177). In this regard, we note that the money to be saved by the plaintiff in removing the child from a private to public school as a consequence of her relocation should help to defray the added expenses envisioned by our order, and that the defendant should apply the amount of the suspended support payments (i.e., $50 per week) in discharge of the contemplated food, lodging and local transportation expenses which will be occasioned by the visitation periods spent in Florida. We would also note that the instant relocation was apparently undertaken in good faith, based upon the legitimate professional and financial concerns of the plaintiff’s new husband (cf. Daghir v Daghir, supra, p 196), and, although of limited significance (see Weiss v Weiss, supra, p 174), that it is not at variance with the terms of the parties’ 1979 separation agreement, which does not purport to restrict the geographical movements of the custodial parent. Rabin, Gulotta and Cohalan, JJ., concur.