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

1410
CAF 13-00239
PRESENT: SMITH, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF MICHAEL HILL,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

FARAH FLYNN, RESPONDENT-APPELLANT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR RESPONDENT-APPELLANT.

TERESA M. PARÉ, ATTORNEY FOR THE CHILD, CANANDAIGUA.


     Appeal from an order of the Family Court, Yates County (W.
Patrick Falvey, J.), entered January 22, 2013. The order, inter alia,
denied the cross petition of respondent seeking permission to relocate
with the parties’ child to Tennessee.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Respondent mother appeals from an order that, inter
alia, denied her cross petition seeking permission to relocate with
the parties’ child to Tennessee. Initially, we reject the contention
of the Attorney for the Child that the appeal is moot based on a
subsequent order entered in a different proceeding in which Family
Court merely reiterated its determination denying the mother’s request
to relocate with the child.

     Upon our review of the evidence at the fact-finding hearing, we
conclude that the court properly considered the factors set forth in
Matter of Tropea v Tropea (87 NY2d 727, 740-741) in determining that
the mother failed to meet her burden of establishing by a
preponderance of the evidence that the proposed relocation is in the
child’s best interests, and that its determination has “a sound and
substantial basis in the record” (Matter of Murphy v Peace, 72 AD3d
1626, 1627).

     In considering the factors set forth in Tropea, the court
properly determined that the child’s relationship with the father
would be adversely affected by the proposed relocation because of the
distance between Yates County and Tennessee, and that the mother
failed to establish that the child’s life would “be enhanced
economically, emotionally and educationally” by the proposed
relocation (id. at 741). Indeed, we note that the main factor upon
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                                                         CAF 13-00239

which the mother relied in her request for the relocation was economic
necessity, but she failed to establish that the employment that she
was offered in Tennessee would last for any significant period of
time, and she also failed to establish that she did not have similar
opportunities in New York (see Matter of Knight v Knight, 105 AD3d
741, 742; Matter of Rose v Buck, 103 AD3d 957, 961; cf. Matter of
Butler v Hess, 85 AD3d 1689, 1690, lv denied 17 NY3d 713).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
