        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

752
CAF 11-00204
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, GREEN, AND GORSKI, JJ.


IN THE MATTER OF PAUL A. BUTLER,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MARGARET E. HESS, RESPONDENT-APPELLANT.


LEONARD G. TILNEY, JR., LOCKPORT, FOR RESPONDENT-APPELLANT.

MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF
COUNSEL), FOR PETITIONER-RESPONDENT.

ELISABETH M. COLUCCI, ATTORNEY FOR THE CHILD, BUFFALO, FOR KATHERINE
B.


     Appeal from an amended order of the Family Court, Erie County
(Craig D. Hannah, A.J.), entered April 20, 2010 in a proceeding
pursuant to Family Court Act article 6. The amended order, inter
alia, continued joint custody and prohibited respondent from
relocating from Western New York.

     It is hereby ORDERED that the amended order so appealed from is
unanimously reversed on the law without costs, respondent’s cross
petition is granted, and the matter is remitted to Family Court, Erie
County, for further proceedings in accordance with the following
Memorandum: Petitioner father commenced this proceeding seeking to
modify the parties’ existing custody arrangement, pursuant to which
the parties have joint custody with primary physical residence with
respondent mother and visitation with the father. The father sought
to prevent the mother from relocating with the child to Pennsylvania
and also sought sole custody of the child. The mother filed a cross
petition (improperly denominated “petition”) in which she sought
permission for the child to relocate with her to Pennsylvania, and she
now contends on appeal that Family Court erred in denying her cross
petition. We agree.

     The record establishes that, pursuant to the existing
arrangement, the father has visitation with the child on alternate
weekends and Sunday overnights on the first Sunday of every month that
does not fall within his regular access time. The mother remarried in
December 2003, when the child was six years old, and the mother and
the child began living with the mother’s husband at that time. In
December 2006, the mother lost her job as a result of budget cutbacks
and, in July 2007, the mother’s husband lost his job after his
                                 -2-                           752
                                                         CAF 11-00204

position was eliminated. The mother’s husband accepted a job in
Pennsylvania in October 2007, which is the basis for the mother’s
cross petition seeking permission to relocate with the child to
Pennsylvania to join her husband. After a hearing, the court, inter
alia, denied the mother’s cross petition and directed her not to
relocate from Western New York, concluding that “there has been no
showing by [the m]other of a real need for relocation to ensure the
child[]’s best interests,” and that the mother had “failed to show
sufficient reasons to justify uprooting the child from the only area
that she has ever known, . . . when clearly the proposed relocation
would qualitatively affect her relation[ship] with the [f]ather.”

     We conclude that the mother established by the requisite
“preponderance of the evidence that [the] proposed relocation would
serve the child’s best interests” (Matter of Tropea v Tropea, 87 NY2d
727, 741; see Matter of Parish A. v Jamie T., 49 AD3d 1322, 1323;
Matter of Jennifer L.B. v Jared R.B., 32 AD3d 1174, 1175). While no
single factor is determinative, the Court of Appeals in Tropea
recognized that “economic necessity . . . may present a particularly
persuasive ground for permitting the proposed move” (id. at 739; see
Matter of Thomas v Thomas, 79 AD3d 1829). Here, the record reflects
that the court did not adequately, if at all, consider the financial
considerations underlying the requested relocation (cf. Thomas, 79
AD3d at 1830; see generally Parish A., 49 AD3d at 1323-1324). It is
undisputed that the mother requested permission to relocate because
she and her husband lost their jobs within a relatively short period
of time. The mother’s husband testified that both his health
insurance, which also covered the mother and the child, and his
severance pay ran out in August 2007. After the mother’s husband lost
his job, he and the mother depleted their savings and their house was
placed into foreclosure. The mother and her husband testified that
they unsuccessfully attempted to locate jobs in Western New York and
that the mother’s husband accepted the job in Pennsylvania out of
financial necessity.

     Here, the court based its determination primarily on its
conclusion that the relocation would “qualitatively affect” the
child’s relationship with the father. That was error, however,
because “the need to ‘give appropriate weight to . . . the feasibility
of preserving the relationship between the . . . parent [without
primary physical custody] and [the] child through suitable visitation
arrangements’ does not take precedence over the need to give
appropriate weight to the economic necessity for the relocation”
(Matter of Cynthia L.C. v James L.S., 30 AD3d 1085, 1086, quoting
Tropea, 87 NY2d at 740-741). In any event, the record establishes
that the proposed relocation would not have a substantial impact on
the visitation schedule. The mother and the husband testified that
they would transport the child to and from Pennsylvania every other
weekend, and they offered to pay for a hotel for the father in
Pennsylvania on his off-weekends so that he could exercise additional
access with the child. The mother further testified that the holiday
access schedule would remain the same because she and her husband
would be returning to Western New York at those times to visit with
their respective families, who reside there. In addition, the
                                 -3-                           752
                                                         CAF 11-00204

mother’s husband purchased video conferencing equipment for his
household and the father’s household to enable the father and the
child to communicate during the week and on the father’s off-weekends.
Thus, the mother established “the feasibility of preserving the
relationship between the [father] and child through suitable
visitation arrangements” (Tropea, 87 NY2d at 741; cf. Matter of Webb v
Aaron, 79 AD3d 1761, 1761-1762).

     We therefore reverse the amended order and grant the mother’s
cross petition, and we remit the matter to Family Court to fashion an
appropriate visitation schedule. In light of our determination, there
is no need to address the mother’s further contention with respect to
the court’s sua sponte award of additional visitation to the father.




Entered:   June 17, 2011                       Patricia L. Morgan
                                               Clerk of the Court
