Koegler v. Woodard

• Decision Date: 07 June 2012
• Citation: 946 N.Y.S.2d 139,2012 N.Y. Slip Op. 04399,96 A.D.3d 454
• Parties: In re Michael H. KOEGLER, Petitioner–Respondent, v. Pamela D. WOODARD, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 454
946 N.Y.S.2d 139
2012 N.Y. Slip Op. 04399

In re Michael H. KOEGLER, Petitioner–Respondent,
v.
Pamela D. WOODARD, Respondent–Appellant.

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

June 7, 2012.

[946 N.Y.S.2d 140]

Chemtob Moss Forman & Talbert LLP, New York (Paul M. Talbert of counsel), for appellant.

Wisselman, Harounian & Associates, P.C., Great Neck (Jacqueline Harounian of counsel), for respondent.

TOM, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, ROMÁN, JJ.

[96 A.D.3d 454]Order, Family Court, New York County (Carol J. Goldstein, Referee), entered on or about December 23, 2010, which denied respondent mother's petition for custody of the parties' child and permission to relocate to Texas with the child, and awarded the parties joint custody, affirmed, without costs.

The parties, unwed parents of a daughter born in December 2005, became involved in a romantic relationship in March 2005. At that time, the mother lived in California and was employed at Citigroup. The father lived in New York and worked for Bear Stearns. After their child was born, the mother filed an action in California seeking custody and child support from the father. In or around June 2006, the parties resolved to work on their relationship. Towards that end, the mother transferred to a new position with Citigroup in Manhattan and moved into an apartment in Manhattan with the child. It was understood that if the mother decided after two years that she did not wish to remain in New York, she and the child could return to California. The maternal grandmother, who lived in Seattle, moved to New York to help with childcare, and the father had regular visitation with his daughter.

The relationship between the parties did not work out, and in or about December 2006, the mother told the father that she wished to relocate to Texas, where she had been raised and where she had family. He objected, and the mother remained in New York. In 2007, the father began dating a woman whom he later married. In early 2008, the mother learned that her job with Citigroup was to be dissolved, and she once again told the father of her desire to relocate to Texas. The father filed an emergency application in Family Court to prevent the mother from leaving New York City and sought joint legal custody and decision making regarding their daughter.

As found by the Family Court, the mother was unemployed [96 A.D.3d 455]for 18 months, during which time she searched for a job in both the New York metropolitan area and Texas. She started a job with First American Bank in Dallas, Texas in July 2009, but did not inform the father or the court that she was working in Texas. This came to light after the father noticed that the mother was often not at her home, and was told by the child's grandmother that she did not know when the mother would return. The father made a motion to the court in August 2009 for more visitation time with the child. The parties entered into a stipulation that the father could have additional visitation with his daughter when the mother was in Texas.

By order dated December 23, 2010, the Family Court denied the mother's request to relocate the child to Texas, granted the parties joint custody and appointed a parent coordinator. The mother was awarded residential custody, provided that she maintained adequate housing in New York. The father was awarded parenting time

[946 N.Y.S.2d 141]

with the child on alternate weekends from Friday at 6 p.m. to Sunday at 6 p.m., every Tuesday overnight from 6 p.m. to Wednesday morning before school, and a dinner visit every Thursday from 6 p.m. to 7:30 p.m. While the mother was in Texas working, the father had residential custody of the child and the mother had residential custody while she was in New York, subject to the father's weekend parenting time. This arrangement has apparently been ongoing for the past year while this appeal has been pending; thus, the child has been spending a substantial amount of time with her father since the Family Court issued its order.

There is a sound and substantial basis in the record for the Family Court's determination to deny the mother's request to relocate to Texas, and there is no reason to disturb the findings of the court ( see generally Matter of Alaire K.G. v. Anthony P.G., 86 A.D.3d 216, 220, 925 N.Y.S.2d 417 [2011] ). The court gave due consideration to the Tropea factors (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ) in concluding that the best interests of the now six-year-old girl would not be served by relocation to Texas.

Regarding the mother's dealings with the father, the court found that she had not been honest with him when she first obtained the Texas job and was out of town for extended periods, and that with respect to her work schedule in Texas, she had been “either misleading or not forthright in giving [the father] information to which he was entitled,” it appearing that the mother “has been trying to hinder [the father] from having the additional visits to which he is entitled by virtue of the Court order.” The court concluded that it is hard to imagine that the mother would be truthful and forthcoming with the father as to [96 A.D.3d 456]the child's activities and general well-being if she lived in Texas. As this Court held in Matter of James Joseph M. v. Rosana R., 32 A.D.3d 725, 726, 821 N.Y.S.2d 168 [2006],lv. denied7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006], “The custodial parent must be able to place the child's needs first while fostering a continued relationship between the child and the noncustodial parent” (citation omitted). The dissent downplays that the mother was dishonest with the father when she did not inform him that she had started a job in Texas and was out of town for extended periods, leaving the child in the care of the grandmother, noting that the father was also untruthful with respect to the child's activities. The dissent points out that the appropriate standard in assessing the desirability of relocation is the best interests of the child, not the supposed misdeeds of the parties. However, the important point here is that the Family Court had a sound basis for concluding that, were the mother and child to live in Texas, the mother would not foster and facilitate a relationship with the father, and that is a relevant factor when assessing the best interests of the child. Despite the court order requiring the mother to inform the father of her schedule regarding her time in Texas and her time in New York, which order provided that the father was to have additional visitation with the child when the mother was in Texas, the record shows a pattern of deception by the mother, who admittedly lied to the father that she was in New York when she was actually in Texas, thus depriving him of the visitation time to which he was entitled by court order.

With respect to the mother's employment, the court indicated that its decision on the relocation petition was based, in part, on the bona fides of the request. The court credited the testimony of a vocational and employability expert that the

[946 N.Y.S.2d 142]

mother's job search in 2008 and 2009 could have been more thorough, including more networking and internet tools, and that with the mother's credentials and a “robust” job search, she could expect to find a job in the financial industry in the New York area within six to eight months. Although the dissent believes that relocation is warranted as a matter of economic necessity, we note that in 2006, years before she lost her Citigroup job in New York, the mother expressed her desire to relocate to Texas. It is clear from the mother's testimony that she does not want to live in New York. As was observed by the Family Court, during the year and a half that this matter was pending, while she was employed in Texas, the mother did not seek a job in New York. When asked by the father's attorney during a September 2010 hearing why she had not continued to look for a position in New York, the mother responded that she does not want to live in New York, and further stated that if a [96 A.D.3d 457]New York job were now offered to her, she would not accept it. Thus, there is a sound basis for the Family Court's determination that relocation is not required by economic necessity.

Additionally, as a practical matter, the record indicates that respondent may no longer be employed in Texas. When the Family Court issued its order on December 23, 2010 denying the relocation petition, it noted that respondent had stated that her job in Texas would be terminated by the end of the year if she could not commit to living full time in that state. The dissent is simply incorrect in stating that there is no evidence to substantiate or even suggest that respondent is no longer employed in Texas. The mother testified in October 2010 that her employer knew of her current situation and had worked with her, but that December would be her last month at that job if she did not relocate to Texas. Her attorney also argued in summation that, if relocation is denied, the mother will be forced to forfeit her position in Texas as her company has indicated that it will no longer allow her to split her time between New York and Texas. Thus, our observation at this point, over a year after the Family Court issued its decision, that the mother may no longer be employed in Texas, is based on her representation to the Family Court.

The court found that the child is happy and well-adjusted, and has a “good solid nurturing relationship with both parents.” While the court considered that the mother was currently employed in Texas, has numerous relatives in Texas who could provide a support system that is lacking for her in New York, and that the maternal grandmother had moved to Texas, the court also noted that the child has paternal aunts and cousins who live in the metropolitan area, with whom...