Opinion
Argued February 10, 1982
Decided February 23, 1982
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JOSEPH J. RICOTTA, J.
Mark G. Hirschorn and Sharon S. Townsend for appellant.
Leonard J. Klaif for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The parties sought, on the basis of cross motions, to modify the visitation provisions of their separation agreement which was incorporated into, but not merged with, the divorce decree terminating their marriage. It was within the discretion of the Appellate Division to determine whether the circumstances presented justified the requested modification. (Compare Dean v Dean, 79 A.D.2d 876, mot for lv to app den 52 N.Y.2d 706, with Milici v Milici, 57 A.D.2d 946.) We cannot say, as a matter of law, that the determination of the Appellate Division which prohibited the mother from removing the children to any location which would interfere with the father's visitation rights was an abuse of that court's discretion. (Cf. Weiss v Weiss, 52 N.Y.2d 170.)
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, in a memorandum.