Reyes v. Ball

Weiss and Mikoll, JJ., dissent and vote to affirm in a memorandum by Weiss, J. Weiss, J. (dissenting).

We have

difficulty differentiating the rationale of the majority in this case from that in our recent decisions in Matter of Pasco v Nolen (154 AD2d 774) and Matter of Towne v Towne (154 AD2d 766). In each instance we rejected attempts by former wives to remove children of a dissolved marriage from New York to far distant States. In those cases, as here, the former wife urged that improved financial circumstances would jus*773tify the move. We agreed that only an exceptional change in circumstances would justify permitting a child to be removed far from the noncustodial father, thereby effectively depriving the children of meaningful access to their father (see also, Weiss v Weiss, 52 NY2d 170, 175; Matter of Grover v Grover, 144 AD2d 852; Matter of Pecorello v Snodgrass, 142 AD2d 920, appeal dismissed 72 NY2d 1039; Matter of Garcia v Doan, 132 AD2d 756, 757, Iv dismissed 70 NY2d 796). Plaintiff sought to prove that her fiancé will improve his career in Wyoming and that she will be able to accelerate her own college education at less cost. However, there is no proof that her fiancé could not achieve career advancement within this region or that her own education could not be continued in Tompkins County without problem. Such lack of proof has in the past resulted in denial of distant geographical relocations (see, Weiss v Weiss, supra; Matter of Pasco v Nolen, supra; Matter of Towne v Towne, supra; Matter of Ellor v Ellor, 145 AD2d 773, 774).

It is now beyond cavil that custody questions must always be resolved by considering the best interest of the child (Eschbach v Eschbach, 56 NY2d 167, 171; Friederwitzer v Friederwitzer, 55 NY2d 89, 94; Matter of Ostrander v Ostrander, 150 AD2d 944; Matter of Ellor v Ellor, supra) and that the determination is based upon a multifaceted inquiry including factors, such as maintaining stability in the living situation, relative fitness of the parents, quality of the home environment, and parental guidance to provide for the intellectual and emotional needs and development of the children (Matter of Ostrander v Ostrander, supra, at 945). It is similarly well established that this evaluation is best made by the trial court which has direct access to the parties and the evidence and is in the best position to make that judgment (Eschbach v Eschbach, supra, at 173; Matter of Ostrander v Ostrander, supra, at 945).

The majority has characterized defendant as less than exemplary because enforcement procedures were required to effect child support payments and used that fact to distinguish this case from Matter of Towne v Towne (supra) and Matter of Pasco v Nolen (supra). Our view of the record is somewhat different in that his payment delinquency was the result of employment difficulties and that $160 out of the $180 he received weekly as Unemployment Insurance benefits were paid directly to plaintiff. Defendant now has a job paying $31,200 annually in Tompkins County and provides medical insurance for the children. He has been regularly involved with their school programs, classwork, and extracurricular *774activities, takes them to church every Sunday, and has helped them prepare for significant religious events in their lives. It is conceded that both parties are apparently good parents. Defendant has demonstrated his love and concern for the welfare of the children through regular visitation and full participation in their education and religion (see, Daghir v Daghir, 82 AD2d 191, 193-194, affd 56 NY2d 938). He should be neither denigrated nor prejudiced because of temporary unemployment, a situation now fully rectified.

We have consistently held that great respect must be given the trial court’s findings (see, Matter of Ostrander v Ostrander, supra; Matter of Ellor v Ellor, supra, at 774; Zaleski v Zaleski, 128 AD2d 865, 866, Iv denied 70 NY2d 603). Here, a learned Judge made his decision in defendant’s favor after a full evidentiary trial and we should not substitute our judgment for that of the trial court which held that the job opportunity of plaintiffs fiancé did not rise to the level of the exceptional circumstances required to justify removal of the children. Since "we properly bestow our greatest respect and deference on the finding of the trial court” (Matter of Pasco v Nolen, supra, at 776; see, Matter of Doyle v McLoughlin, 146 AD2d 940, 942; Matter of Ferguson v Ressico, 125 AD2d 915, 916), the same result should pertain here.