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

884
CAF 11-01230
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF REBECCA L. LANG-LOEB,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOHN F. O’NEILL, RESPONDENT-RESPONDENT.
-------------------------------------------
IN THE MATTER OF JOHN F. O’NEILL,
PETITIONER-RESPONDENT,

                    V

REBECCA L. LANG-LOEB, RESPONDENT-APPELLANT.


RAYMOND W. BULSON, PORTVILLE, FOR PETITIONER-APPELLANT AND RESPONDENT-
APPELLANT.

FERN S. ADELSTEIN, OLEAN, FOR RESPONDENT-RESPONDENT AND PETITIONER-
RESPONDENT.

CAROLYN KELLOGG JONAS, ATTORNEY FOR THE CHILD, WELLSVILLE, FOR KATHRYN
C.O.


     Appeal from an order of the Family Court, Allegany County (Lynn
L. Hartley, J.H.O.), entered April 1, 2011 in a proceeding pursuant to
Family Court Act article 6. The order denied the petition of Rebecca
L. Lang-Loeb for permission to relocate with the child to Alabama.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the provision that, if
Rebecca L. Lang-Loeb relocates to Alabama, “the Court finds that it
would be in the child’s best interest that [John F. O’Neill] should be
the primary custodian of the child” and as modified the order is
affirmed without costs.

     Memorandum: Petitioner-respondent mother brought a petition
seeking permission to relocate with the parties’ daughter to Alabama,
where the man to whom she had recently been married resided.
Respondent-petitioner father opposed the relocation petition and
brought a petition seeking to modify the prior custody order by
transferring primary physical custody of the child from the mother to
him. Following a fact-finding hearing, Family Court denied both
petitions and further ordered that, “should the [mother] relocate to
Alabama the Court finds that it would be in the child’s best interest
                                 -2-                           884
                                                         CAF 11-01230

that the [father] should be the primary custodian of the child.”

     With respect to the relocation petition, 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 (see
Matter of Webb v Aaron, 79 AD3d 1761, 1761-1762; Matter of Murphy v
Peace, 72 AD3d 1626, 1626-1627). We note that the mother’s primary
reason for moving to Alabama was that she had obtained a job there
that paid her approximately $40,000, but by the conclusion of the
hearing she no longer had that job. Although the mother’s attorney
asserted in his written summation that the mother had other good job
offers in Alabama, no evidence had been admitted at trial with respect
to those jobs. In any event, as the court stated, the mother made no
“attempts to obtain employment in New York State since she voluntarily
closed her day care center.” Indeed, the mother admitted that she did
not send out a single resumé or complete any job applications in New
York. Even assuming, arguendo, that the mother established a
financial need to move to Alabama, we conclude that the other Tropea
factors militated against granting her relocation petition.

     We modify the order, however, by vacating the provision that
primary physical custody of the child shall be transferred to the
father in the event that the mother relocates to Alabama. That
provision, “while possibly never taking effect, impermissibly purports
to alter the parties’ custodial arrangement automatically upon the
happening of a specified future event without taking into account the
child’s best interests at that time” (Matter of Brzozowski v
Brzozowski, 30 AD3d 517, 518; see Matter of Carter v Kratzenberg, 209
AD2d 990; Rybicki v Rybicki, 176 AD2d 867, 871).




Entered:   October 5, 2012                      Frances E. Cafarell
                                                Clerk of the Court
