Anne S. v. Peter S.

• Citation: 2012 N.Y. Slip Op. 00912,92 A.D.3d 483,938 N.Y.S.2d 73
• Parties: In re ANNE S., Plaintiff–Appellant, v. PETER S., Defendant–Respondent.
• Decision Date: 09 February 2012
• Court: New York Supreme Court Appellate Division

2012 N.Y. Slip Op. 00912
92 A.D.3d 483
938 N.Y.S.2d 73

In re ANNE S., Plaintiff–Appellant,
v.
PETER S., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Feb. 9, 2012.

[938 N.Y.S.2d 74]

Cohen Rabin Stine Schumann LLP, New York (Gretchen Beall Schumann of counsel), for appellant.

Kenneth Lyle Bunting, White Plains, for respondent.

Schpoont & Cavallo LLP, New York (Sandra L. Schpoont of counsel), attorney for the children.TOM, J.P., SWEENY, ACOSTA, RENWICK, ROMÁN, JJ.

[92 A.D.3d 484] Orders, Supreme Court, New York County (Matthew F. Cooper, J.), entered August 29, 2011 and August 31, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's application to relocate to Luxembourg with the parties' children, and order, same court and Justice, entered October 27, 2011, insofar as it determined plaintiff's access schedule, unanimously affirmed, without costs.

Plaintiff failed to demonstrate that the determination denying her application to relocate lacks a sound and substantial basis in the record ( see Matter of David J.B. v. Monique H., 52 A.D.3d 414, 861 N.Y.S.2d 330 [2008] ) or that relocation would be in the children's best interests ( see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ). She failed to demonstrate that relocation was warranted based on economic necessity ( compare Matter of Harrsch v. Jesser, 74 A.D.3d 811, 902 N.Y.S.2d 183 [2010] ) or that she would receive increased support in Luxembourg from her extended family, who live nearby in Luxembourg and France ( compare Amato v. Amato, 202 A.D.2d 458, 609 N.Y.S.2d 51 [1994], lv. denied 83 N.Y.2d 759, 616 N.Y.S.2d 14, 639 N.E.2d 754 [1994] ). The record shows that defendant has a stable job and has, for the past four years, maintained a stable home for the children, in the community in which they have always lived, near their school, their extracurricular activities and their friends; moreover, the children are happy and successful in their current school ( see e.g. Matter of Solomon v. Long, 68 A.D.3d 1467, 891 N.Y.S.2d 528 [2009]; Impastato v. Impastato, 62 A.D.3d 752, 879 N.Y.S.2d 509 [2009] ).

Contrary to plaintiff's argument, the court considered seriously and addressed the court-appointed evaluator's concerns about defendant's alcoholism and his past failure to communicate appropriately

[938 N.Y.S.2d 75]

with plaintiff ( see Neuman v. Neuman, 19 A.D.3d 383, 796 N.Y.S.2d 403 [2005]...