Blundell v. Blundell

• Decision Date: 01 May 1989
• Parties: John BLUNDELL, Respondent, v. Georginne I. BLUNDELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 850

540 N.Y.S.2d 850

150 A.D.2d 321

John BLUNDELL, Respondent, v. Georginne I. BLUNDELL, Appellant.

Supreme Court, Appellate Division Second Department.

May 1, 1989.

Douglas R. Rothkopf, Garden City (Sharon I. Feder, on the brief), for appellant.

Roper & Sherwood, Floral Park (Milard King Roper and Diana Sherwood, on the brief), for respondent.

Before MOLLEN, P.J., and EIBER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County (Brucia, J.), dated June 2, 1987, as, after a nonjury trial, conditioned the award of custody to her of the parties' two children upon her remaining within a 30-mile radius of the parties' former marital home.

ORDERED that the judgment is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, the following words from the first decretal paragraph thereof are deleted: "conditioned on her remaining within a 30-mile radius of the former marital residence, to wit: 63 Maxwell Road, Garden City, New York", and the matter is remitted to the Supreme Court, Nassau County, for a determination as to whether any modification of the visitation provisions of the judgment are warranted in light of this determination.

The parties were married in May 1974 and have two children, Thomas, born on November 13, 1979, and Suzanne, born on April 26, 1983. Shortly after Suzanne was born, the plainti husband moved out of the marital home in Garden City, New York, and since 1984 has resided nearby with a woman and her two children in Floral Park, New York. An action for divorce was instituted in July 1985 and a trial was held in August 1986. On the issue of custody of the parties' two children, the plaintiff testified that he would agree to permit the defendant to retain custody subject to his liberal visitation, provided that the defendant not be permitted to move to New Hampshire as she proposed. At the trial, the defendant expressed her desire to relocate to Londonderry, New Hampshire, where her parents and family resided. The defendant, however, recognizing the plaintiff to be a caring parent, did not oppose the granting of visitation to the plaintiff on alternate weekends, during school recesses and during the summer months. Following the trial, the Supreme Court, inter alia, awarded a divorce to the defendant on the ground of abandonment and awarded custody to the defendant on the condition that she remain within a 30-mile radius of the former marital home. The court also determined that the plaintiff was entitled to liberal visitation rights. On appeal, the defendant contends that the Supreme Court improperly conditioned her award of custody of the parties' children upon her remaining within a 30-mile radius of the former marital residence.

Any custody determination depends to a very great extent upon the court's assessment of the credibility of the witnesses and of the character and temperament of the parents, and, therefore, the findings of the trial court are generally accorded the greatest respect (Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Robert T.F. v. Rosemary F., 148 A.D.2d 449, 538 N.Y.S.2d 605). However, the Appellate Division's authority in matters of custody is as broad as that of the trial court (see, Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091; Matter of Robert T.F. v. Rosemary F., supra ). Notwithstanding the deference to be accorded to the findings of the trial court, under the circumstances of this particular case, the Supreme Court's determination was not supported by the evidence.

At the trial, the defendant explained that her decision to relocate to Londonderry, New Hampshire, where she owned a townhouse was motivated by a desire to be closer to her parents and brother with whom she shares a good relationship. The defendant has no immediate relatives in the Long Island area. The defendant explained that she expected that her parents would assist her in the rearing of her two children and would provide emotional support as well as free babysitting services while she worked. In the defendant's opinion, the move would be in the best interest of the children and would lower the cost of her living expenses. The defendant indicated that while she was not currently employed in New York, she planned to find full-time employment as a secretary in New Hampshire. Moreover, she considered the plaintiff to be a fit parent and, as previously noted, she did not oppose the granting of liberal visitation to him on alternate weekends, as well as during school recesses and the summer months. The defendant explained that the drive from Long Island to New Hampshire is approximately five hours but that she was willing to meet the plaintiff with the children at a mid-way point when he visited the children. The defendant also explained that Londonderry, New Hampshire is approximately 30 to 40 miles away from Logan Airport and that the one-way airfare between Logan and LaGuardia Airports is $35 per child and $50 per adult.

The plaintiff's father, who currently...