Coniglio v. Coniglio

In a matrimonial action in which the parties were divorced by judgment dated February 15, 1989, which incorporated but did not merge provisions of a stipulation entered into by the parties in open court, the plaintiff wife appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated May 9, 1989, which granted the defendant husband’s motion to enforce the terms of the stipulation and divorce judgment and denied her cross motion to modify the terms of the divorce judgment to (1) permit her to relocate to Florida with the parties’ child, (2) alter the terms and conditions of the visitation schedule, and (3) award additional child support.

Ordered that the order is affirmed, without costs or disbursements.

The parties were married in July 1977. Their only child, Philip, Jr., was born on February 4, 1981. Sometime in 1983, the plaintiff moved out of the marital residence. In 1987, she commenced an action for divorce. The defendant appeared and the matter was placed on the trial calendar. Prior to the date of trial, the parties agreed that the plaintiff should retain custody of Philip, Jr., and a rather complex visitation schedule providing for supervised and eventual unsupervised visits was agreed upon and stipulated to in open court. As a result of this stipulation entered into on October 24, 1988, which also provided that the plaintiff would not move a distance of more than 50 miles from her present address without the defendant’s prior written consent, the defendant withdrew his answer and the plaintiff obtained a judgment of divorce on the ground sought.

Shortly thereafter, in February 1989, which marked the beginning of the second phase of the visitation plan allowing for supervised visits away from the custodial residence, the *478plaintiff refused to provide the defendant access to his son, claiming that he had violated the terms of the stipulation by failing to remain drug and alcohol free. The plaintiff refused to comply with the visitation schedule until the defendant underwent a psychiatric and physical examination. The defendant then moved the Supreme Court to enforce the terms of the stipulation which were incorporated but not merged into the judgment of divorce. The plaintiff cross-moved to modify the judgment of divorce to (1) permit her to relocate with Philip, Jr., to Florida, (2) to modify the visitation schedule, and (3) to increase the amount of child support she was to receive from the defendant. The Supreme Court denied her cross motion in its entirety, granted the defendant’s motion, and directed the plaintiff to adhere to the original terms and conditions of the visitation schedule.

It is well settled that the courts of this State will not permit a parent to relocate to a distant domicile which would effectively deprive the noncustodial parent of regular access to his or her children absent a showing of exceptional circumstances (see, Meier v Meier, 156 AD2d 348; Blundell v Blundell, 150 AD2d 321). Although the predominant concern is the best interest of the child, the resolution of such disputes requires a careful balancing of the rights and problems of both the child and of his or her parents (see, Meier v Meier, supra; Schwartz v Schwartz, 91 AD2d 628). In the case at bar, there is an insufficient basis in the record upon which to conclude that the best interests of the child would be served by relocating to Florida. Such a move would obviously deprive the defendant of reasonable access to his child and would effectively curtail his visitation rights, thereby depriving the child of the benefits of a regular and continuing paternal relationship (see, Daghir v Daghir, 82 AD2d 191, affd 56 NY2d 938; Meier v Meier, supra; cf., Blundell v Blundell, supra). Significantly, the plaintiff has failed to demonstrate exceptional circumstances which would relieve her of the terms of the stipulation she agreed to just six months prior to the bringing of her cross motion and which would warrant relocating with the child from New York to a distant domicile in Florida.

Additionally, we note that the defendant supplied adequate proof, namely bank statements, various affidavits, medical reports and laboratory reports, to counter the plaintiff’s unsubstantiated assertions regarding his occupational status and drug and alcohol use. Accordingly, we find no basis on which to overturn the Supreme Court’s determinations pertaining to *479the visitation schedule and child support issues. Thompson, J. P., Lawrence and O’Brien, JJ., concur.