Kretser v. Kretser

Kane, J. (dissenting).

A wife’s right to receive support under the terms of a separation agreement may be terminated if she violates the father’s rights of visitation (Conrad v Conrad, 64 AD2d 751, app dsmd 46 NY2d 849). The violation may be of a specific term of the agreement or of a right implied therein (Walsh v Walsh, 64 AD2d 980; Abraham v Abraham, 44 AD2d 675). While court authorization and an inquiry into the particular facts and circumstances are required to determine whether visitation rights have been impaired (Murza v Murza, 85 AD2d 687), at such hearing, considerations of a change of custodial arrangements can be made if it appears the acts of the custodial parent are inconsistent with the best interests of the child (Family Ct Act, § 652; Entwistle v Entwistle, 61 AD2d 380, app dsmd 44 NY2d 851). The record of the proceedings before the Family Court in this case reveals the following salient facts. The separation agreement executed by the parties provided for “temporary custody” with petitioner father being awarded part of one weekday per week, two weekends per month, alternate holidays, two weeks in the summer and one week in the winter. He scrupulously exercised these rights over a five-year period until respondent and her daughter went to Florida, not for a two-month period previously agreed upon, but for six months. During this time, contact with his daughter required petitioner to fly to Florida. When mother and daughter returned in the spring of 1980, they located at a camp in Sullivan County, operated by the SYDA Foundation Ashram at South Fallsburg, New York, where respondent mother pursued a course of study of yoga and philosophy under the guidance of the Lord Baba Moktananda and another teacher, Paramahamsa. The mother’s pursuit of learning made contact with the daughter more difficult for petitioner and also contributed to the deterioration of the relationship between the parties. This atmosphere persisted throughout the summer months and finally, on September 12, 1980, respondent and daughter surreptitiously departed for California without notice to petitioner. On the day they left, petitioner had made arrangements to visit his daughter at South Fallsburg, and appeared late that afternoon only to find that she and respondent had departed at 11:00 a.m. that morning without leaving information as to their destination in California. An application pursuant to section 241 of the Domestic Relations Law suspending payment of alimony was obtained by order to show cause dated September 19, 1980 nunc pro tunc to September 12, 1980. The proceeding was thereafter transferred to Family Court for a hearing and determination of factual issues. The hearing was held, at which petitioner and respondent were the only *799witnesses. Thereafter, Family Court, in a decision and order, directed petitioner to continue payment of support as provided by the separation agreement, but made no findings of fact or conclusion of law with respect to any of the matters raised by the evidence produced at the hearing. In view of the legal principles set forth, we find it difficult to conclude that this naked decision and order suffices to resolve the important issues presented in this proceeding. For example, at the hearing, respondent testified that she went to California to continue her meditation studies with the guru, living in a place “off the beach in Santa Monica” at a meditation center provided by the Ashram. She also testified that the water near the beaches is so foul from people dumping garbage in the water that swimming is avoided and play on the beach is limited. Respondent described the water as “not a healthy place to be” and was concerned about reports of illness suffered by lifeguards at the area. Moreover, there was testimony by respondent of her commitment to the teachings of the SYDA Foundation and the Guru Moktananda with an indication that she might follow him with her daughter to other locations, possibly even to his native land of India. Under the circumstances, additional inquiry seems mandated to assure that existing custodial arrangements are in the best interest of this 10-year-old child. As to the specific terms of the separation agreement, since the right of visitation has become virtually impossible by reason of respondent’s removal to California, it seems clear there has been a breach of rights granted the husband, at least by implication, under the terms of that agreement (Walsh v Walsh, supra). Moreover, her departure to California, without notice and without any effort to inform plaintiff of her whereabouts, was a clear violation of a specific term of the agreement. Finally, since there were no reasons set forth by the Family Court for its decision, this court is empowered to make the determination which should have been made in the first instance (Shipman v Words of Power Missionary Enterprises, 54 AD2d 1052) after the hearing. Accordingly, the relief sought by petitioner should be granted and respondent directed to return to the State of New York where petitioner can exercise his visitation rights, and further hearings may be held on the issue of the best interests of the child under existing custodial arrangements.