Scott VV. v. Joy VV.

103 A.D.3d 945, 959 N.Y.S.2d 298

This text of 103 A.D.3d 945 (Scott VV. v. Joy VV.) 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
Scott VV. v. Joy VV., 103 A.D.3d 945, 959 N.Y.S.2d 298 (N.Y. Ct. App. 2013).

Opinion

Peters, P.J.

Appeal from an order of the Supreme Court (Hall, J.), entered February 22, 2012 in Saratoga County, which, among other things, denied defendant’s motion to modify a prior order of custody and visitation.

Plaintiff (hereinafter the father) and defendant (hereinafter the mother) are the parents of a daughter (born in 2006). Following the parties’ separation in June 2010, the mother learned that approximately 20 years earlier the father had sexually abused his daughter from a previous marriage, and immediately obtained an order preventing any contact between the father [946]*946and the child. In February 2011, an order was entered on consent granting the parties joint legal custody of the child, with the mother having primary physical custody and the father having twice-weekly supervised visitation. The order also required the father to undergo a sex abuse risk assessment and successfully complete sex abuse treatment.

In April 2011, the mother sought permission to relocate to California with the child. Following three days of hearings in June 2011, Supreme Court temporarily permitted the relocation. Subsequent hearings were held in August and September 2011 after which Supreme Court found, in a detailed and well-reasoned written decision, that relocation would not be in the child’s best interests. The mother appeals.

The mother, as the parent seeking to relocate, had the burden of proving by a preponderance of the evidence that the proposed move would be in the child’s best interests (see Matter of Shirley v Shirley, 101 AD3d 1391, 1392 [2012]; Matter of Pizzo v Pizzo, 94 AD3d 1351, 1352 [2012]). “Relevant factors to consider include ‘each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements’ ” (Matter of Feathers v Feathers, 95 AD3d 1622, 1623 [2012], quoting Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; see Matter of Scheffey-Hohle v Durfee, 90 AD3d 1423, 1425 [2011], appeal dismissed 19 NY3d 876 [2012]). As Supreme Court was in the best position to make factual findings and credibility determinations, its determination of the relocation issue will not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Weber v Weber, 100 AD3d 1244, 1245-1246 [2012]; Matter of Pizzo v Pizzo, 94 AD3d at 1352; Matter of Hissam v Mancini, 80 AD3d 802, 804 [2011], lv dismissed and denied 16 NY3d 870 [2011]).

The record reveals that the mother’s new boyfriend, who she met while he was temporarily in New York, was the impetus behind the requested relocation (see Matter of Williams v Williams, 90 AD3d 1343, 1344 [2011]; Matter of Leach v Santiago, 20 AD3d 715, 716 [2005], lv denied 6 NY3d 702 [2005]). Moreover, the proposed move provides no meaningful economic enhancement. The mother, who worked as a patient care [947]*947coordinator for a prestigious plastic surgery practice in Albany County, accepted an offer for a similar job in Beverly Hills, California. While her new position increased her annual salary by approximately $12,000 and, unlike her prior employment, offered opportunity for promotion, the testimony presented following the temporary move established that living expenses, transportation costs and the child’s private school tuition were much higher than anticipated, with the increase in costs nearly subsuming her modest salary increase. Significantly, the mother is dependent on her boyfriend for a large portion of her living expenses,

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Related

MATTER OF TROPEA v. Tropea
665 N.E.2d 145 (New York Court of Appeals, 1996)
Feldsberg v. Nitschke
404 N.E.2d 1293 (New York Court of Appeals, 1980)
Leach v. Santiago
20 A.D.3d 715 (Appellate Division of the Supreme Court of New York, 2005)
In re Julia BB.
42 A.D.3d 208 (Appellate Division of the Supreme Court of New York, 2007)
Mallory v. Jackson
51 A.D.3d 1088 (Appellate Division of the Supreme Court of New York, 2008)
Hissam v. Mancini
80 A.D.3d 802 (Appellate Division of the Supreme Court of New York, 2011)
Munson v. Fanning
84 A.D.3d 1483 (Appellate Division of the Supreme Court of New York, 2011)
Williams v. Williams
90 A.D.3d 1343 (Appellate Division of the Supreme Court of New York, 2011)
Scheffey-Hohle v. Durfee
90 A.D.3d 1423 (Appellate Division of the Supreme Court of New York, 2011)
Pizzo v. Pizzo
94 A.D.3d 1351 (Appellate Division of the Supreme Court of New York, 2012)
Weber v. Weber
100 A.D.3d 1244 (Appellate Division of the Supreme Court of New York, 2012)
Lori DD. v. Shawn EE.
100 A.D.3d 1305 (Appellate Division of the Supreme Court of New York, 2012)
Shirley v. Shirley
101 A.D.3d 1391 (Appellate Division of the Supreme Court of New York, 2012)
Shapiro v. Shapiro
151 A.D.2d 559 (Appellate Division of the Supreme Court of New York, 1989)
In re Karen F.
208 A.D.2d 994 (Appellate Division of the Supreme Court of New York, 1994)

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Bluebook (online)
103 A.D.3d 945, 959 N.Y.S.2d 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-vv-v-joy-vv-nyappdiv-2013.