From Casetext: Smarter Legal Research

Goodwin v. Goodwin

Appellate Division of the Supreme Court of New York, Second Department
May 31, 1991
173 A.D.2d 769 (N.Y. App. Div. 1991)

Opinion

May 31, 1991

Appeal from the Supreme Court, Westchester County (Kaiser, J.H.O.).


Ordered that the order is reversed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination in accordance herewith.

We reject the husband's claim that, by granting the wife's motion to relocate to Florida with the children, the court erroneously vacated the parties' stipulation. In the instant case, the parties never stipulated as to whether the wife could relocate to a different region. Therefore, the court's order permitting relocation did not alter their agreement.

We agree with the husband, however, that the court should have held a hearing before resolving the wife's motion. "It is well settled that a move by a custodial parent to a distant domicile, unless there are exceptional circumstances present, will not be permitted when it would effectively deprive the noncustodial parent of regular access to his or her children" (Meier v Meier, 156 A.D.2d 348, 351; see also, Coniglio v Coniglio, 170 A.D.2d 477). Here, the wife submitted proof indicating that she could not afford to purchase a house in the area near the former marital residence, but the record was devoid of proof regarding the cost of renting a house in the area. It cannot be said upon the present record, therefore, that the relocation to Florida is economically necessary (see, Morgano v Morgano, 119 A.D.2d 734; Kozak v Kozak, 111 A.D.2d 842). Nor does the record clearly establish that the husband has "forfeited his * * * right to access to the children" (Matter of Bonfiglio v Bonfiglio, 134 A.D.2d 426, 427).

Further, questions of fact exist as to whether relocation to a distant domicile would be in the best interests of the children. Although a resolution of disputes regarding relocation requires a consideration of the parents' rights, ultimately the "predominant concern is the best interest of the children" (Meier v Meier, supra, at 351). Because the record does not indicate whether exceptional circumstances are present nor whether the relocation would be in the best interests of the children, an evidentiary hearing is essential (cf., Venzer v Venzer, 144 A.D.2d 552; Coniglio v Coniglio, supra).

Finally, we note that the wife did not relocate with the children until after obtaining a court order permitting the move and until after the husband's application for a stay was denied. Accordingly, the children should be permitted to remain in Florida pending the outcome of the hearing. Brown, J.P., Sullivan, Lawrence and Ritter, JJ., concur.


Summaries of

Goodwin v. Goodwin

Appellate Division of the Supreme Court of New York, Second Department
May 31, 1991
173 A.D.2d 769 (N.Y. App. Div. 1991)
Case details for

Goodwin v. Goodwin

Case Details

Full title:PATRICIA R. GOODWIN, Respondent, v. CHARLES W. GOODWIN, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 31, 1991

Citations

173 A.D.2d 769 (N.Y. App. Div. 1991)

Citing Cases

Matter of Tropea v. Tropea

Similarly, where the noncustodial parent has managed to overcome the threshold "meaningful access" hurdle,…

Freedman v. Freedman

Supreme Court denied the motion and scheduled a custody hearing. We decline to disturb Supreme Court's order…