Scheffey-Hohle v. Durfee

• Decision Date: 29 December 2011
• Citation: 935 N.Y.S.2d 718,90 A.D.3d 1423,2011 N.Y. Slip Op. 09553
• Parties: In the Matter of Anna SCHEFFEY–HOHLE, Respondent, v. Travis C. DURFEE, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09553

90 A.D.3d 1423

935 N.Y.S.2d 718

In the Matter of Anna SCHEFFEY–HOHLE, Respondent,

v.Travis C. DURFEE, Appellant.

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

Dec. 29, 2011.

Daniel J. Fitzsimmons, Watkins Glen, for appellant.

Connie F. Miller, Watkins Glen, for respondent.

Paul R. Corradini, Elmira, attorney for the child.

Before: SPAIN, J.P., ROSE, LAHTINEN, GARRY and EGAN JR., JJ.

EGAN JR., J.

Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.), entered August 9, 2010, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a daughter (born in 2000). Although the mother and the father were both in college when the mother became pregnant and they lived some distance apart, the father was present for the child's birth and thereafter enjoyed significant parenting time with the child pursuant to an informal agreement between the parties. When the child was three years old, the mother enrolled the child in preschool—effectively ending the then-shared physical custody arrangement—and married Steven Hohle (hereinafter the stepfather), with whom she subsequently had two sons. After the father completed his postgraduate work and relocated to Schuyler County, where the child resided, he sought to resume the shared physical custody arrangement. By order entered December 21, 2007 upon consent, Family Court awarded the parties joint legal and shared physical custody of the child. By all accounts, this arrangement proved to be eminently workable for the parties and, more to the point, extraordinarily beneficial to the child, who reaped the rewards of having two loving parents actively—and essentially equally—involved in her daily life.

Thereafter, in January 2010, the mother commenced this proceeding seeking permission to relocate with the child to Pittsburgh, Pennsylvania—approximately 5 1/2 hours away from Schuyler County and where the stepfather had accepted a new job. Following a lengthy hearing, Family Court granted the mother's application, concluding that relocation was in the child's best interest and awarding the parties joint legal custody with primary physical placement to the mother and substantial visitation to the father. This appeal by the father ensued.¹

Upon reviewing the record, it is apparent that the child is blessed with two skilled and devoted parents, each of whom clearly has her best interest at heart and each of whom has made various sacrifices upon her behalf. ² The child also enjoys a loving relationship with the stepfather and her half siblings, as well as with the father's live-in girlfriend and her young children, and being surrounded by this caring and supportive family network plainly has enabled the child to thrive. However, these very blessings, together with the fact that the parents stand upon essentially equal footing with one another, made Family Court's decision all the more difficult, as it was faced with the unenviable task of determining which parent potentially would be deprived of regular and meaningful access to the child. ³ It is clear that Family Court struggled with this dilemma—as have we—but despite the court's well-reasoned decision, we are obliged to reverse, deny the mother's relocation request and dismiss the underlying petition.

As the party seeking to relocate, the mother bore the burden of establishing by a preponderance of the credible evidence that the proposed relocation would be in the child's best interest ( see Matter of Kirshy–Stallworth v. Chapman, 90 A.D.3d 1189, ––––, 934 N.Y.S.2d 592, 593 [2011]; Matter of Munson v. Fanning, 84 A.D.3d 1483, 1484, 922 N.Y.S.2d 613 [2011]; Matter of Sofranko v. Stefan, 80 A.D.3d 814, 815, 914 N.Y.S.2d 361 [2011] ). “Among the factors to be considered in determining whether relocation is in the child's best interest are 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 Sniffen v. Weygant, 81 A.D.3d 1054, 1055, 916 N.Y.S.2d 320 [2011] [internal quotation marks and citations omitted], appeals dismissed 16 N.Y.3d 886, 923 N.Y.S.2d 414, 947 N.E.2d 1193 [2011], 17 N.Y.3d 884, 933 N.Y.S.2d 640, 957 N.E.2d 1142 [2011]; see Matter of Hissam v. Mancini, 80 A.D.3d 802, 803, 916 N.Y.S.2d 248 [2011], lv. dismissed and denied 16 N.Y.3d 870, 923 N.Y.S.2d 406, 947 N.E.2d 1184 [2011]; Matter of Solomon v. Long, 68 A.D.3d 1467, 1469, 891 N.Y.S.2d 528 [2009] ).

Here, the stated impetus for the requested relocation was the stepfather's acceptance of a new job in Pennsylvania. Previously, the stepfather operated a guided navigation system used in oil and natural gas exploration—a position he had held for 15 years and in which he was engaged at the time he and the mother married. This position required him to travel extensively and resulted in him periodically being away from home for six- to eight-week stints—facts that admittedly were known to the mother at the time of the marriage. When his “rig” was idle, the stepfather received his base salary of $40,000 per year; for each day that he was on site, however, he received “ field pay,” enabling him to earn between $110,000 and $120,000 per year.

In January 2010, the stepfather received an offer to work in a supervisory position in his employer's regional office in Pittsburgh. Although this position reduced the stepfather's annual salary to $90,000, he testified that his new job represented both a steady and predictable source of income and an overall improvement in his—and his family's—quality of life.⁴ Notably, at the time the stepfather accepted the position, he had not been laid off, and there is nothing in the record to suggest that he was in any real danger of losing his job. Rather, it appears that the stepfather accepted the new position based upon his fear that he might eventually, at some theoretical point in the future, lose his job—despite the fact that he had not been laid off even once during the course of his 15 years with his employer.

To be sure, the stepfather cannot be faulted for wanting to travel less, but the relocation effectively shifts the travel burden from the stepfather to the child and her biological father. Further, while we recognize that the demands posed by the mother's marriage, as well as her desire to keep her new family intact, are factors to be considered in evaluating the relocation request ( see Matter of Vargas v. Dixon, 78 A.D.3d 1431, 1432, 911 N.Y.S.2d 518 [2010] ), the balance of the Tropea factors ( 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] ), in our view, do not militate in favor of the child's relocation.

As to the quality of the child's relationship with her respective parents, it is clear that the mother and the father dote on her and that she, in turn, has a close and loving relationship with each of them. Although there is an argument to be made—despite the nearly equal periods of physical custody—that the mother has been the child's primary caregiver, the father's devotion to the child is, as Family Court aptly observed, virtually unparalleled. The father moved twice—first leaving his journalism career in Albany County to pursue a Master's degree in Tompkins County, where he would be closer to the child, and then relocating to Schuyler County, where he eventually obtained a teaching position in the child's school district. Moreover, when the mother and the stepfather pursued a business opportunity that could have resulted in the child having to change schools, the father undertook to purchase property within the district so that the child could remain in the same school.⁵ The record further reflects—and no one disputes—that the father, who coaches the child's soccer team, is significantly involved in her life and that she, in turn, benefits greatly from this relationship ( see Matter of Munson v. Fanning, 84 A.D.3d at 1485, 922 N.Y.S.2d 613; Matter of Solomon v. Long, 68 A.D.3d at 1468–1469, 891 N.Y.S.2d 528; compare Matter of Sniffen v. Weygant, 81 A.D.3d at 1056, 916 N.Y.S.2d 320 [father visited with children only sporadically, often failed to pay child support and did not attend school functions or otherwise meaningfully participate in their lives]; Matter of Hissam v. Mancini, 80 A.D.3d at 804, 916 N.Y.S.2d 248 [mother exercised poor parental judgment and engaged in conduct that was emotionally and psychologically harmful to the child]; Matter of Vargas v. Dixon, 78 A.D.3d at 1432–1433, 911 N.Y.S.2d 518 [father failed to regularly exercise visitation and had limited involvement in child's education]; Matter of Sara ZZ. v. Matthew A., 77 A.D.3d 1059, 1060–1061, 909 N.Y.S.2d 212 [2010] [father engaged in domestic violence against the mother, had limited supervised visitation with the child and rarely attended his school functions or athletic events] ).

For these reasons, there can be no serious question that the child's relocation would significantly impact upon the quality and quantity of her future contact with the father ( see Matter of Munson v. Fanning, 84 A.D.3d at 1485, 922 N.Y.S.2d 613; Matter of Mallory v. Jackson, 51 A.D.3d 1088, 1090, 857 N.Y.S.2d 767 [2008], lv. denied 11 N.Y.3d 705, 866 N.Y.S.2d 608, 896 N.E.2d 94 [2008]; Matter of Paul v. Pagnillo, 13 A.D.3d 971, 972–973, 786 N.Y.S.2d 662 [2004] ). Alt...