Tropea v. Tropea

Decision Date26 March 1996
Parties, 665 N.E.2d 145, 64 USLW 2619 In the Matter of Tammy L. TROPEA, Respondent, v. John P. TROPEA, Appellant. In the Matter of Jacqueline BROWNER, Respondent, v. Andrew KENWARD, Appellant.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT

TITONE, Judge.

In each of these appeals, a divorced spouse who was previously granted custody of the couple's minor offspring seeks permission to move away from the area in which the noncustodial spouse resides. Both noncustodial spouses oppose the move, contending that it would significantly reduce the access to the children that they now enjoy. Their respective appeals from the Appellate Division order and the Family Court judgment authorizing the requested moves raise significant questions regarding the scope and nature of the inquiry that should be made in cases where a custodial parent proposes to relocate and seeks judicial approval of the relocation plan.

I. Matter of Tropea v. Tropea

The parties in this case were married in 1981 and have two children, one born in 1985 and the other in 1988. They were divorced in 1992 pursuant to a judgment that incorporated their previously executed separation agreement. Under that agreement, petitioner mother, who had previously been the children's primary caregiver, was to have sole custody of the children and respondent father was granted visitation on holidays and "at least three * * * days of each week." Additionally, the parties were barred from relocating outside of Onondaga County, where both resided, without prior judicial approval.

On June 3, 1993, petitioner brought this proceeding seeking changes in the visitation arrangements and permission to relocate with the children to the Schenectady area. Respondent opposed the requested relief and filed a cross petition for a change of custody. At the ensuing hearing, petitioner testified that she wanted to move because of her plans to marry an architect who had an established firm in Schenectady. According to petitioner, she and her fiance had already purchased a home in the Schenectady area for themselves and the Tropea children and were now expecting a child of their own. Petitioner stated that she was willing to cooperate in a liberal visitation schedule that would afford respondent frequent and extended contact and that she was prepared to drive the children to and from their father's Syracuse home, which is about two and a half hours away from Schenectady. Nonetheless, as all parties recognized, the distance between the two homes made midweek visits during the school term impossible.

Respondent took the position that petitioner's "need" to move was really the product of her own life-style choice and that, consequently, he should not be the parent who is "punished" with the loss of proximity and weekday contact. Instead, respondent proposed that he be awarded custody of the children if petitioner chose to relocate. To support this proposal, respondent adduced evidence to show that he had maintained frequent and consistent contact with his children at least until June of 1993, when the instant proceeding was commenced. He had coached the children's football and baseball teams, participated in their religion classes and had become involved with his older son's academic education during the 1992-1993 school year. However, there was also evidence that respondent harbored a continuing bitterness toward petitioner which he had verbalized and demonstrated to the children in a number of inappropriate ways. Respondent admitted being bitter enough to have called petitioner "a tramp" and "a low-life" in the children's presence and, in fact, stated that he saw nothing wrong with this conduct, although he acknowledged that it had a negative effect on the children. Respondent's mother confirmed that he had spoken negatively about petitioner in the children's presence and that this behavior had not been helpful to the children.

Following the hearing, the presiding Judicial Hearing Officer (JHO) denied petitioner's request for permission to relocate. Applying what he characterized as "a more restrictive view of relocation," the JHO opined that whenever a proposed move "unduly disrupts or substantially impairs the [noncustodial parent's] access rights to [the] children," the custodial spouse seeking judicial consent must bear the burden of demonstrating "exceptional circumstances" such as a "concrete economic necessity." Applying this principle to the evidence before him, the JHO found that petitioner's desire to obtain a "fresh start" with a new family was insufficient to justify a move that would "significantly impact upon" the close and consistent relationship with his children that respondent had previously enjoyed.

On petitioner's appeal, however, the Appellate Division reversed, holding that petitioner had made the necessary showing that the requested relocation would not deprive respondent of "regular and meaningful access to his children." (212 A.D.2d 1050, 624 N.Y.S.2d 1010.) Further, the Court noted, petitioner's proposed visitation schedule afforded respondent the opportunity for frequent and extended contact with his children. Finally, the Court found that the move would be in the best interests of the children. Accordingly, the Court ruled that petitioner should be permitted to move to Schenectady and remitted the matter to Family Court for the establishment of an appropriate visitation schedule. The final Family Court judgment from which respondent appeals awards respondent substantial weekend, summer and vacation visitation in accordance with the Law Guardian's recommended schedule. 1

Matter of Browner v. Kenward

The parties to this proceeding were married in August of 1983 and had a son three years later. After marital discord led the parties to separate, they executed a stipulation of settlement and agreement in January of 1992 which gave petitioner mother physical custody of the couple's child and gave respondent father liberal visitation, including midweek overnight visits and alternating weekends. Under the stipulation, respondent was to remain in the marital residence, which was located in White Plains, New York, and petitioner and the parties' son were to live with petitioner's parents in nearby Purchase. Petitioner was required to seek prior approval of the court if she intended to move more than 35 miles from respondent's residence. The stipulation was incorporated but not merged in the parties' divorce judgment, which was entered in June of 1992.

In October of 1992, petitioner brought the present proceeding for permission to relocate with the couple's child to Pittsfield, Massachusetts, some 130 miles from respondent's Westchester County home. Petitioner requested this relief because her parents were moving to Pittsfield and she wished to go with them. Respondent opposed the application, contending that he was a committed and involved noncustodial parent and that the proposed move would deprive him of meaningful contact with his son.

A hearing was conducted over a period of several months. The hearing evidence disclosed that petitioner's parents had been considering moving for some time and had made the final decision to do so in September of 1992, coinciding fairly closely with the loss of petitioner's job. Petitioner testified that she had tried to find work in New York but was unable to do so. She further testified that her prospects of finding affordable housing in the Purchase area were bleak. She ultimately located a marketing job in Pittsfield that would give her enough income to rent a home of her own in that area. Petitioner had also investigated the facilities for children in Pittsfield and had found a suitable school and synagogue for her son.

An additional motivating factor for petitioner was the emotional support and child care that she received from her parents and that she expected to receive from her extended family in Pittsfield. According to the evidence, petitioner was somewhat dependent on her parents for financial and moral support, and petitioner's son had become especially close to his grandparents after his own parents had separated. Further, the boy had a long-standing close relationship with his Pittsfield cousins.

Respondent argued that permission for the move should be denied because it would significantly diminish the quantity and quality of his visits with his child. Respondent noted that the move would eliminate the midweek visits that he had previously enjoyed as well as his opportunity to participate in the child's daily school, sports and religious activities. Accordingly, respondent argued, petitioner's proposed relocation to Pittsfield would deprive him of meaningful access to his child.

The Family Court found petitioner's argument that she was unable to secure employment and new housing within the Westchester area to be less than convincing. The court further found that respondent had been "vigilant" in visiting his son and was "sincerely interested in guiding and nurturing [the] child." Nonetheless, the court ruled in petitioner's favor and authorized the proposed move, granting respondent liberal visitation rights. In so ruling, ...

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