Masiello v. Milano

• Decision Date: 05 February 2020
• Docket Number: Docket Nos. V–2578–18/18B, V–2579–18/18B, V–2578–18/18C, V–2579–18/18C,2019–01886
• Citation: 118 N.Y.S.3d 739,180 A.D.3d 683
• Parties: In the Matter of Danielle MASIELLO, appellant, v. Louis MILANO, respondent. (Proceeding No. 1) In the Matter of Louis Milano, respondent, v. Danielle Masiello, appellant. (Proceeding No. 2)
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 683

118 N.Y.S.3d 739

In the Matter of Danielle MASIELLO, appellant,

v.Louis MILANO, respondent. (Proceeding No. 1)

In the Matter of Louis Milano, respondent,

v.Danielle Masiello, appellant. (Proceeding No. 2)

2019–01886

Docket Nos. V–2578–18/18B, V–2579–18/18B, V–2578–18/18C, V–2579–18/18C

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

Submitted - December 16, 2019

February 5, 2020

Thomas T. Keating, Dobbs Ferry, NY, for appellant.

The Law Office of Kelley M. Enderley, P.C., Poughkeepsie, NY, for respondent.

Pat Bonanno, White Plains, NY, attorney for the children.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Tracy C. MacKenzie, J.), dated January 17, 2019. The order, after a hearing, denied the mother's petition, in effect, to modify the parties' stipulation of settlement dated May 2, 2014, so as to permit the parties' children to relocate to South Carolina to live with her, and granted the father's petition, in effect, to modify the stipulation of settlement dated May 2, 2014, so as to award him sole physical custody of the children.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the mother's petition, in effect, to modify the stipulation of settlement dated May 2, 2014, so as to permit the parties' children to relocate to South Carolina to live with her is granted, the father's petition, in effect, to modify the stipulation of settlement dated May 2, 2014, so as to award him sole physical custody of the children is denied, and the matter is remitted to the Family Court, Dutchess County, to establish an appropriate parental access schedule for the father.

The parties were married in 2006 and are the parents of two children, who are now 11 and 10 years old. In a stipulation of settlement dated May 2, 2014 (hereinafter the stipulation), which was incorporated but not merged into the parties' judgment of divorce dated May 27, 2014, the parties agreed to joint legal custody of the children, with the mother having physical custody. In 2018, the mother, who was moving to South Carolina, filed a petition, in effect, to modify the stipulation so as to permit the children to relocate to South Carolina to live with her. The father opposed the mother's petition and filed a petition, in effect, to modify the stipulation so as to award him sole physical custody of the children. The attorney for the children supported the mother's petition. On August 9, 2018, the Family Court issued a temporary order awarding physical custody of the children to the father. After a hearing and in camera interviews with the children, the court denied the mother's petition and granted the father's petition. The mother appeals.

" ‘A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child's best interests’ " ( Matter of Hall v. Clas, 144 A.D.3d 801, 802, 40 N.Y.S.3d 557, quoting Matter of Ventura v. Huggins, 141 A.D.3d 600, 600, 34 N.Y.S.3d 599 [internal quotation marks omitted] ). "In determining whether relocation is appropriate, each ‘request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child’ " ( Matter of Estevez v. Perez, 123 A.D.3d 707, 708, 998 N.Y.S.2d 413, quoting Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575, 665 N.E.2d 145 ; see Matter of Rizvi v. Shah, 126 A.D.3d 984, 984, 6 N.Y.S.3d 139 ). "[T]he court must consider a number of factors, including the child's relationship with each parent, the effect of the move on contact with the noncustodial parent, the potential economic, emotional, and educational enhancement to the lives of the custodial parent and the child due to the move, and each parent's motives for seeking or opposing the move" ( Matter of Barker v. Rohack, 173 A.D.3d 1173, 1174, 105 N.Y.S.3d 478 [internal quotation marks omitted]; see Matter of Tropea v. Tropea, 87 N.Y.2d at 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 ). "The weighing of these various factors requires an evaluation of the testimony, character, and sincerity of all the parties involved," and "deference is accorded to the Family Court's findings in this regard" ( Matter of Feery v. Feury, 168 A.D.3d 729, 730, 92 N.Y.S.3d 146 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Nevertheless, in relocation proceedings, the authority of this Court is as broad as that of the hearing court, and a relocation determination will not stand if it is not supported by a sound and substantial basis in the record (see Matter of David v. LoPresti, 176 A.D.3d 701, 111 N.Y.S.3d 356 ; Matter of Ceballos v. Leon, 134 A.D.3d 931, 932, 21 N.Y.S.3d 353 ).

Here, the Family Cou...