ustice Delores J. Thomas
Decided: August 25, 2010
The following papers numbered 1 to 5 read on this motion and cross motion: Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1, 2
Opposing Affidavits (Affirmations) 3, 4
Reply Affidavits (Affirmations) 5
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Upon the foregoing papers, plaintiff Christa Skoupy (Mother) moves for an order modifying the parenting time schedule for defendant Martin Azambuya (Father), as authorized by paragraph L, page 9 of the stipulation of settlement executed by the parties on May 1, 2008 (the Stipulation), to accommodate both her move with the parties' children to Scarsdale, New York and the children's attendance at school in Scarsdale.
Father opposes the motion and cross-moves for an order granting the following relief: (1) restraining and enjoining Mother from relocating with the parties' two children from Brooklyn to Scarsdale on the ground that said move is not in the best interests of the
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children; (2) holding Mother in contempt of court pursuant to Judiciary Law §§753, 756 and 770 for her alleged willful and deliberate violation of the Stipulation by (a) unilaterally deciding to move the parties' children from Brooklyn to Scarsdale and changing the children's school enrollment for the 2010-2011 academic year without Father's consultation or consent; (b) failing and refusing to have the children call Father between the hours of 7:00 P.M. and 7:30 P.M. on those days that the children are with Mother; (c) failing and refusing to reschedule parenting time with the parties' children when Father was required to take a business trip; and (d) failing and refusing to comply with the summer vacation provision of the Stipulation which provides that Father is to spend one month of the children's summer vacation (either July or August) with the children; (3) terminating the joint legal custody provisions of the Judgment of
Divorce and awarding sole legal custody of the children to Father with primary physical custody being transferred from Mother to Father; (4) appointing a law guardian for the children to be paid for by Mother; (5) appointing a forensic psychologist to address Mother's
parental alienation of the children from Father and (6) directing Mother to pay attorneys' fees to Father's counsel in the sum of $5,000 without prejudice to further attorneys' fee requests.
A temporary restraining order was issued by the court on June 23, 2010, directing that the residence of the parties' children not be changed to an area outside the borders of their present school, The Children's School of Brooklyn, pending resolution of the instant motion and cross motion of the parties.
Pursuant to the Stipulation, the parties agreed to joint legal custody and to consult with each other with respect to their children's education, religious training, summer and
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after-school activities, illness and operations (except in emergencies), health, welfare and other matters of similar importance. It was also stipulated between the parties that Mother would communicate with Father prior to making any major decisions relating to the Children, with Mother retaining final decision-making authority if the parties were unable to agree subsequent to the parties' consultation with each other.
With respect to physical custody, the Stipulation provides that the primary residence of the children shall be with Mother and sets forth the parenting time of Father as follows:
"1. Every other week from Friday at 5:00 p.m. until Monday morning, when the Father delivers the Children to school. If the Children have no school on a Monday following the Father's parenting weekend, the Father's parenting time shall be extended to Monday at 5:00 p.m. when the Father will deliver the Children to the Mother's residence;
2. Every Wednesday from 5:00 p.m. until Thursday Morning, when the Father delivers the Children to school. If the Children have no school on a Thursday, the Father's parenting time shall be extended to Thursday at 5:00 p.m. when the Father will deliver the Children to the Mother's residence."
In support of her motion, Mother states that the Stipulation between the parties anticipated the potential relocation of Mother, the parent with physical custody, and provided for any concomitant logistical modifications to visitation occasioned by such move by including the following provision at paragraph L, page 9:
"Notwithstanding [the aforesaid parenting time schedule], if the distance between the residence of the Mother and the Father, or the Children have a school commitment or project, requires them to return on Wednesday night following midweek parenting time with the Father or on Sunday night following weekend parenting time then the Father shall return the children by 8:00 p.m. on Wednesday and by 6:00 p.m. on Sunday until [the youngest child's] 10th birthday and then by 8:00 p.m. on Sunday."
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Mother avers that the lease on her apartment in Brooklyn expired on July 31, 2010. When she received the notification of termination in June, 2010, she searched for a community in close proximity to New York City that was safe and had excellent public schools, including middle and high schools. She determined after much research that Scarsdale fulfilled all of the criteria necessary to afford the children a good quality of life and informed Father of her intention to relocate to that location with the children. The home she has rented in Scarsdale is within walking distance of the elementary school and train station, has a large yard and allows the children to have their own bedrooms. She alleges that Father did not object to the relocation, but that the parties have been unable to work out the particulars of Father's post-move parenting time schedule.
Specifically, Mother avers that both she and Father have proposed alternate modifications of Father's current parenting schedule. She describes the parties' competing parenting time arrangements as follows:
Mother's Proposal: The children shall be made available to Father in Scarsdale for parenting time directly upon the conclusion of school on Wednesday until 8:00 P.M. at which time they shall be returned to Mother's residence. Since the driving license of Father was suspended due to nonpayment of child support, Mother shall take the children to the train station in Scarsdale and will pick them up once the visit is concluded. With respect to weekends, the weekend parenting time would begin upon the conclusion of school on Friday as opposed to at 5:00 P.M. Mother will take the children to Grand Central Station on Friday and pick them up at the same location on Sunday.
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Father's Proposal: The Children shall be brought to Brooklyn after school on Wednesdays and picked up by Mother in Brooklyn at 8:00 pm. Also, the current weekend visitation schedule will be augmented by additional weekend visitation with Father and/or split weekends.
Mother contends that Father's proposed parenting schedule will not maximize his parenting time with the children, as much of that time will be spent by the children in transit between Scarsdale and Brooklyn. Moreover, she argues that it will unduly delay the children's arrival at Mother's residence on a school night when they need to get to bed at a reasonable hour. She also maintains that the Father's inclusion of additional and/or split weekends in his proposed parenting time schedule will unduly disrupt the agreed-upon allocation between the parties of non-school day time with their children.
Father opposes the motion on the ground that such relocation will so interfere with his parenting time that the move should be deemed as not in the best interests of the children. He also contends in his cross motion that Mother has engaged in parental alienation concerning his relationship with the children and also has, among other things, interfered on several occasions with his visitation and phone contact with the children. Due to such alleged misconduct, he seeks an order of contempt, modification of custody and related relief almost identical to that sought in his previous cross motion before the court. Such prior cross motion resulted in an order issued by this court dated February 18, 2009, denying all such items of relief to Father.
It is well settled that "[a] stipulation of settlement in a matrimonial action is a contract subject to principles of contract interpretation" (Oakes v. Oakes, 38 AD3d 865,
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865 [2007]). "When the terms of a written contract are clear and unambiguous, the intent of the parties must be gleaned from the four corners of the instrument" (Gipp v. Gipp, 37 AD3d 406, 406 [2007]). Stated somewhat differently, "[i]f the contract is unambiguous the court must give a practical interpretation to the language employed and the parties' reasonable expectations" (Greenberg v. Greenberg, 37 AD3d 410, 411 [2007], lv denied 8 NY3d 816 [2007]; accord Herzfeld v. Herzfeld, 50 AD3d 851, 851 [2008]). Accordingly, in construing a stipulation of settlement in the matrimonial context, the court must determine whether the subject stipulation is ambiguous and, if not, should proceed to interpret the contract in accordance with its plain and ordinary meaning (see Colucci v. Colucci, 54 AD3d 710, 712 [2008]), in order to "reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized' (Herzfeld, 50 AD3d at 851 [internal quotation marks and citation omitted]).
In addition, "where parents enter into an agreement concerning custody, 'it will not be set aside unless there is sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interest of the [child]'" (McNally v. McNally, 28 AD3d 526, 527 [2006], quoting Smoczkiewicz v. Smoczkiewicz, 2 AD3d 705, 706 [2005]; accord Matter of Joseph F. v. Patricia F., 32 AD3d 938, 938 [2006]; Matter of Rawlins v. Barth, 21 AD3d 495, 495 [2005], lv denied 5 NY3d 717 [2005]; Bobinski v. Bobinski, 9 AD3d 441, 441 [2004]; Matter of Gaudette v. Gaudette, 262 AD2d 804, 805 [1999], lv denied 94 NY2d 790 [1999]). Stated differently, "[a]lthough the totality of the circumstances of the case and the best interests of the child are factors to be considered in all cases where modification of custody is sought, where
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the parties have entered into an agreement, the agreement is entitled to considerable weight and it is incumbent on the party seeking the change to show that in light of changed circumstances continued adherence to the agreement would not be in the children's best interests" (Steck v. Steck, 307 AD2d 819, 819 [2003][citations omitted]; accord Granata v. Granata, 289 AD2d 527, 527 [2001]). Such an agreement is "weighted heavily to ensure stability in [a] child's life" (Matter of Coyne v. Coyne, 150 AD2d 573, 575 [1989]). Moreover, "[a] parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing" (Teuschler v. Teuschler, 242 AD2d 289, 290 [1997]; accord Spratt v. Fontana, 46 AD3d 670, 670 [2007]).
In cases where the parties have stipulated to a joint custody arrangement with respect to their children, said "[j]oint custody should be continued so long as the parties' relationship is not 'so acrimonious' as to effectively preclude joint decision making, such that joint custody is no longer in the best interest of the children" (Foley v. Foley, 52 AD3d 773, 774 [2008]). This comports with the general principle that custody should be established on a long term basis, absent a sufficient showing that the current custody arrangement is detrimental to the best interests of the children (see generally DiVittorio v. DiVittorio, 36 AD3d 848, 849 [2007]).
The court finds that the relocation of Mother and the children to Scarsdale comports with the plain terms of the Stipulation and, therefore, it shall not interfere with her decision to do so. The evidence before the court demonstrates that Father has been fully consulted by Mother concerning said decision and that his main objection to the
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relocation is the logistical modifications to his parenting time schedule that such move will necessitate. However, the Stipulation, by its unambiguous terms, vests Mother with ultimate decision-making authority in the event that the parties cannot reach an accommodation subsequent to consultation regarding important issues affecting the parties' children. Although it is regrettable that the parties cannot agree with respect to the modification of Father's parenting schedule, the court notes that Mother's proposal is substantially in compliance with the potential logistical changes anticipated by paragraph L, page 9 of the Stipulation. Given the clarity of the parties' intentions regarding these matters, the court is precluded from second-guessing them or rewriting the Stipulation. Moreover, Father has failed to establish that these aspects of the parties' custody arrangement - namely, the provision made for potential relocation, albeit within geographical parameters that would allow for adherence to the specified parenting time modifications contained in paragraph L, and the retention by Mother of ultimate decision-making authority - are contrary to the best interests of the children such that a hearing is warranted concerning the modification of such provisions or an enjoinder by the court of the proposed relocation.
Most importantly, no evidence has been proffered to date that the children have been adversely affected by the current custody arrangement. To the contrary, the children appear to love both of their parents, are thriving at school and do not exhibit any behavioral problems. With respect to Father's alienation claims, no evidence has been submitted that the children possess a negative image of Father, have refused to see him, display behavioral problems when with him or otherwise have ever refused to
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communicate with him. Indeed, the time Father spends with his children, as he describes it, is enriching and enjoyable and he has been active in their education and development. The children tell him that they miss him when not with him and demonstrate that they value seeing him, hardly evidence of any sort of alienation. Although the children are growing older and are perhaps cognizant of some of the tensions between their parents or are affected by their own movement between two families, such awareness has not resulted in their alienation from Father. As in this court's previous decision, it appears that both parents are actively and passionately involved with their children but have, at times, encountered scheduling difficulties and communication hurdles while navigating the challenges inherent in managing separate households and separate schedules to the benefit of all parties. Both parties, however, directly and through attorneys, have consistently communicated and, for the most part, have reached reasonable resolutions. On a heartening note, prior to the instant motion and cross motion, the parties had not brought a custody issue before this court in the approximately 16 months which have transpired since the court issued its prior decision in February 2009, resolving several custody and child support issues. As was the case in that decision, the court is not persuaded that the incidents asserted by Father necessitate a hearing on change of custody or the related relief he seeks. Nor is it persuaded that Mother's claims concerning Father's own alleged noncompliance with the Stipulation's phone contact and parenting schedule are particularly probative on the issue of the children's well-being or undermine the evidence supporting Father's demonstrable substantial compliance with the terms of the Stipulation to the best of his ability and his active parenting of the parties' children.
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Where a relocation does not deprive the noncustodial parent of meaningful access to the parties' children, the mother is not required to show exceptional circumstances to justify relocation (see Matter of Browner v. Kenward, 213 AD2d 400, 401 [1995], affd sub nom Tropea v. Tropea, 8 NY2d 727 [1996][grant of mother's motion to relocate to another state upheld where the 130 mile relocation, although depriving father of mid-week visitation, granted him enhanced visitation in other respects]). A stipulation between the parties that allows for relocation is also an important factor to be considered (see McMahon v. McMahon, 62 AD3d 968, 968 [2009]).
However, the court notes that although the parties' Stipulation does not prohibit the relocation of either party and, indeed, explicitly contemplates that the distance between the parties' residences could potentially change in the future necessitating parenting time modifications for Father, the "best interests" of the children are paramount. Those best interests may be considered at a hearing whenever sufficient factual questions exist whether a relocation will or has adversely affected same, even where, as here, the Stipulation anticipates potential relocation within certain geographical boundaries (see id.).
In this case, the parties' children, by all accounts, are thriving and enjoy positive relationships with both parents. There is no indication, at this juncture, that their relocation to Scarsdale with Mother in and of itself will jeopardize their well-being, is not in their best interests or that the parenting time modification established in paragraph L, page 9 is per se unworkable based upon the distance between Scarsdale and Brooklyn. Accordingly, a best interests hearing is not warranted at this time. Rather, such move
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presents several discrete logistical difficulties for the parties and some additional, but navigable, burdens on Father with respect to transportation and timing issues, as well as a restructuring of the specifics of his weekday parenting time (the weekend parenting time appears to this court to be substantively unaffected by the relocation).
The court is sympathetic to Father that the relocation of Mother and the children will necessitate readjustments to his weekday visitation that may not be ideal for him. However, the court is not persuaded that such readjustments must inevitably adversely affect the children. Hence, the court admonishes the parties to continue to communicate with each other and to be patient with each other throughout the relocation process.
The court takes judicial notice that many families, for various reasons and to differing degrees, regularly commute between Westchester County and New York City and well-established public transportation options exist to facilitate such travel contingencies. It is the responsibility and obligation of both parents, as joint custodians of their children's well-being, to ensure that Father's parenting time remains beneficial to the children and comports with the terms of the Stipulation. Both parties are expected, therefore, to use their best efforts to comply with Mother's proposal as contained in her moving papers, as such proposal represents her final decision-making authority concerning the relocation and concomitant parenting time modification and substantially comports with paragraph L, page 9.
In addition, both parties are expected to continue to communicate, to evaluate the functionality of the weekday parenting arrangement once it is put into effect and to consult further concerning any modifications that may be warranted if legitimate
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difficulties arise. The court fully expects the relocation and parenting time modification, at least in the short term, to be a work in progress, with both parties placing the needs and well-being of their children first and foremost in any scheduling arrangements.
Accordingly, given the difficulties and adjustments inherent in any move, even if such relocation does not, on its face, present an imminent threat to the children's best interests, and in light of some of the difficulties encountered by the parties during the negotiation of the modified parenting schedule envisioned by paragraph L, page 9 of the Stipulation, the court shall set a status conference for November 15, 2010 to determine if the issuance of any further orders by the court are warranted with respect to the relocation, Father's parenting time schedule or any related issues.
As a result, Mother's motion for modification is granted only to the extent that the court finds that her relocation to Scarsdale and proposed modified parenting schedule are substantially in compliance with the Stipulation and properly fall within her ultimate decision-making authority under it. Therefore, the court shall not interfere with either the relocation or the proposed modified parenting schedule contained in Mother's moving papers.
Father's cross motion for an order enjoining said relocation, modifying custody, holding Mother in contempt and other related relief is denied in its entirety. Both parties shall pay their own attorneys' fees.
The parties shall appear at 9:30 A.M. on November 15, 2010 for a status conference with respect to the relocation and modified parenting time schedule.
The temporary restraining order issued by the court on June 23, 2010, enjoining
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any change in residence of the parties' children, is hereby vacated.
The foregoing constitutes the decision and order of the court.