By Judgment of Divorce (Jonas, J.) dated February 3, 2000, the marriage between Petitioner E. M. N. (hereinafter referred to as “Father”) and Respondent K. B. (“Mother”) was dissolved by reason of having lived separate and apart for a year under a written Separation Agreement dated June 12, 1997 (Exhibit 1), which was incorporated but not merged into the Judgment. Custody of the parties children, J. N. (DOB 3/18/87), N. N. (DOB 12/22/89) and D. N. (DOB12/17/93) was awarded to the Mother, subject to extensive and liberal visitation rights to the Father, including alternate weekends and a minimum of three mid-week visitations per week. The Father was responsible for the payment of child support in the sum of $2,750 per month subject to other events, including emancipation of each respective child.Pursuant to the Separation Agreement, the Family Court was given concurrent jurisdiction with the Supreme Court for purposes of enforcement, and of making such further judgments with respect to child support, custody or visitation as Family Court finds appropriate; however, with respect to any application for Relocation, the Mother was required to bring said application in the Supreme Court pursuant to Article IX(u) of the Agreement, which provided as follows:The parties agree that the continued proximity of their residences is important to the well- being of the children and their relationship to the parents. Accordingly, the MOTHER covenants, represents and warrants that she will not permanently establish residence with the children at any point beyond 50 miles. If the MOTHER desires to establish a residence outside of the aforesaid radius, she shall first secure the consent of the FATHER to such a change. If the FATHER refuses to consent, she may seek to secure an order, by application on notice to the FATHER, from the Supreme Court of the State of New York, County of Nassau, to determine whether she may move the children’s residence beyond such radius(emphasis supplied [hereinafter "Relocation Provision"]).By three Petitions for Enforcement and Modification of an Order Made by Another Court filed July 29, 2003, and September 19, 2003, the Father instituted the instant proceedings against the Mother in Nassau County Family Court, alleging that the Mother had moved the children to Orlando, Florida, in July, 2003, in clear violation of the Relocation Provision of the Separation Agreement. The Father seeks enforcement of the Agreement directing the children to return to New York, and modification of the Agreement, so as to change custody to him. Simultaneously therewith, the Father also filed a Modification Petition as to certain support matters (Index No. F-1174-2000/03F), seeking a suspension of his support Order, in light of the children’s relocation to Florida.On October 7, 2003, the Mother commenced a separate proceeding in Nassau County Family Court, seeking permission to relocate her residence with the children from New York to Florida. It was undisputed, that as of July, 2003, the Mother had in fact relocated the children’s home to Florida. Although a consolidated hearing[1] on all Petitions had begun on November 21, 2003, the Court dismissed the Mother’s Petition on December 18, 2003, for lack of jurisdiction, determining that the Relocation Petition should have been brought in Supreme Court, which retained exclusive jurisdiction on said issue (Matter of Bakirtzi v. Nemerovsky, Nassau County Fam Ct, Balkin, J., Dec. 18, 2003, Index No. V-8740-2003/03D).[2] Findings of FactAt the hearing, this Court was able to hear testimony from the parties and the children which enabled it to complement the abovementioned procedural history as follows. During their marriage, the N’s occupied an spacious home in Old Pond Road in Great Neck, New York. As part of the Judgement of Divorce, the Mother received the home subject to two mortgages, which currently total $383,000. The Father estimated the value of his home as in excess of $1,200,000. While the Mother would not assign a value to the marital residence, she did agree it was worth more than $500,000.The Mother is a flight attendant for Delta Airlines earning approximately $55,000 per year. Although the Father possesses a law degree and accounting degree and had his own law practice in Manhattan and Queens, he describes himself as an “entrepreneur” who cannot find employment since 1997, other than brief working stints in marketing and sales. The Father has been anything but consistent in the payment of child support, and the Mother testifies that arrears of $80,000 are currently due and owing.The Mother moved out of the marital residence in August 2001, although she did not sell the residence. She and the children moved into a small two bedroom apartment in their Great Neck community, which she described as inadequate and cramped for her and the three children. The Mother then decided, in April, 2003, to leave New York, based on the fact that she could not afford living in New York, particularly the Great Neck area and the Father was not paying child support. Other than driving around the Hauppauge area (Suffolk County) on two weekends and looking for other residences in Great Neck, the Mother made no attempt to seriously look for alternate housing in the New York area, or a 50 mile radius.The Father testified that he learned from his daughter Nicole in June, 2003, that the Mother and children were moving to Orlando, Florida. There was no communication by the Mother informing him of her plans to move, nor did the Mother seek permission to relocate, nor did the Father ever consent to this move either to the Mother or any of the children. The Mother confirmed that she never made any application to any Court to relocate to Florida, before she moved the children, although Jason told his Mother that “off the record” his Father said Florida would be a good opportunity for him. The Father denies giving relocation permission to anyone, including Jason. In fact, the Mother testified that she knew of the radius provision in the Agreement and ignored it when she elected to move.As a flight attendant, the Mother’s “home base” is located in New York’s John F. Kennedy Airport, where she boards for international flights, often times to Athens, Greece. According to the Mother, she did not consider her New York home base as an impediment to relocation, since she has free flight privileges, and can fly Delta from Florida to New York for any of her overseas flight.In July, 2003, the Mother relocated the children’s New York residence to Orlando, Florida, to a single family private residence. Florida was chosen, the Mother testified, because of the good weather, the cheaper standard of living, and opportunities for her and the children. The Mother has no relatives in Florida, or any other connection to the State. According to the Mother, she paid $274,000 for the house, putting $2,000 down and taking a 100 percent mortgage. The home is on a lake, has a pool, trampoline, separate rooms for the children, and many other amenities. The contract for the house was signed on June 26, 2003. Four weeks later, on July 20, 2003, the Mother executed a lease on the Great Neck marital residence, renting it to tenants for $5,900 per month. As of the first week in August, 2003, the children were enrolled in school in Florida.The Mother has not attempted to sell the Great Neck residence nor any of her holdings in Greece, which includes a building with two apartments which generates rental income shared with her sister of $500 or $600 per month; a shop, valued at approximately $20,000, which also generates rental income of $250 per month; and an apartment in Athens, with a value of approximately $80,000, which generates rental income of $500 per month.Prior to relocating to Florida, the Father would often look in on the children in Great Neck, in addition to other family members in New York, if the Mother was away overnight on an international flight. Since the Mother has moved to Florida, various friends look in on the children or stay with the children on and off when she is away. During the hearing, it was reported that one of the children, Jason, had the flu. The Mother informed the Court that a male friend, age 32, who was a boxer, was looking in on the children, although not staying overnight. She further reported that her housekeeper was away until after the holidays, and another female friend would also look in on the children in her absence.The Mother testified that when she and the children lived in New York, the Father would see the children on weekends, and dependent on the children’s schedule, he might see a combination of one, two or three of the children on various nights for mid-week visits. The schedule was dependent on the children’s availability and the Father’s schedule, and they communicated with each other to arrange the visits. It was reported by both parents, that the children were excellent students and enjoyed the visits with their Father. Although the Father may not have made every visit, the Court finds that he actively visited with the children both on weekends and during the mid-week and attended the children’s sporting events, musical concerts, and sometimes assisted in transporting the children to activities.Presently, the Mother and the Father have absolutely no communication. The Mother admitted that since the Father stopped paying child support, she hangs up the phone when he calls the children, including talking to them in Florida.Currently, both Nicole and Dimitra take free flights from Florida on the Mother’s Delta flight passes and see the Father on alternate weekends. The children arrive from Florida late Friday at 10:00 p.m. and are put on a return plane to Florida on Sunday, catching either the 2:30 p.m. or 5:00 p.m. flight. They do their homework on the airplane and look forward to their visits. The oldest child Jason, who will turn 17 on March 18, 2004, has refused to see his Father. Jason has had a stormy relationship with his Father for the past three or four years, and the last time they saw each other was in August, 2003. According to the Mother, Jason is angry at his Father and does not want to move back to New York. The current litigation has only served to exacerbate their fragile relationship.The Mother further testified that she would like to remain in Florida, and have the children visit the Father as often as they want, including every weekend, holidays and summer vacation. She acknowledges that Jason currently has no relationship with his Father and will not visit with him under any circumstances. Since the children have been in Florida, the Mother has enrolled Jason in private flying lessons; Nicole has private violin lessons and skating lessons and Dimitra loves the huge trampoline in the back yard of the house.If required to move back to New York, the Mother testified she would try to rent the Florida residence and secure another apartment in Great Neck, which has an excellent school. The children previously attended and enjoyed their school in Great Neck, and still maintain friends in the area. The Mother anticipates any change of location will prove difficult for Jason who is very much committed to Florida.In Camera InterviewAll three children were interviewed in Chambers by the Court in the presence of the Law Guardian and the court stenographer. The minutes of the children’s interviews are an integral part of the record of this proceeding and have been duly considered by the Court, but no further reference will be made to protect the confidentiality and contents of their testimony (see Matter of Lincoln v. Lincoln, 24 NY2d 270; Family Ct Act §664). Their testimony remains sealed for any further review.Law Guardian RecommendationThe Law Guardian recommended that the Agreement be enforced. However, he requested that the children not be required to relocate until the completion of the school year in Florida, which apparently is at the end of May.Conclusions of LawPursuant to Family Court Act §652 and the Domestic Relations Law §240, the Family Court has jurisdiction over enforcement proceedings of its own orders or orders of another courts involving the custody and visitation of children (see Renzulli v. McElrath, 286 AD2d 335; Metzger v. Metzger, 133 AD2d 524; Matter of Dow v. Dow, 163 Misc 2d 1013). This is especially so when, as here, a Judgment of Divorce gives the Family Court concurrent enforcement jurisdiction with the Supreme Court (see Family Ct Act §652[b]). When a relocation provision is sought to be enforced, it should also be kept in mind that “[a] distant geographic relocation by a custodial parent is disfavored because it deprives the non- custodial parent of access to the children” (Weiss v. Weiss, 52 NY2d 170, 175; see Matter of Tropea v. Tropea, 87 NY2d 727, 739; Matter of Confort v. Nicolai, 309 AD2d 861).Applying these principles to the matter at bar, the Father has sufficiently established his right to the enforcement of the Divorce Judgment and its underlying Separation Agreement. At the hearing, there was no evidence presented to this Court of any fraud, coercion or mistake or, in fact, anything to negate the enforcement of the Agreement. The Father and the Mother drew up the terms of the Agreement together and she was represented by counsel at the time of the divorce. Neither of the parties has ever brought any proceeding to vitiate any of the Agreement terms. Indeed, the Mother candidly acknowledged that she was well aware of all the Agreement provisions, including, in particular, the Relocation Provision. As such, the Agreement’s Relocation Provision must have been followed and it is clearly enforceable against the Mother.Additional reasons support the enforcement of the procedure for relocation in the Agreement. Initially, there is no dispute that the children have resided in New York for all of their lives and have friends and paternal relatives in the area, including their grandfather and cousins. Nor is it disputed that the Father has exercised frequent and regular visitation with the children and that essential to that relationship is the frequency of that contact with the children (compare Matter of Wiles v. Wiles, 171 AD2d 398, with Matter of Buell v. Buell, 258 AD2d 709). The availability of free flights does not substitute for an on-going relationship with Father. Nor are the material advantages of the Mother’s home in Florida, such as the lake, trampoline and pool, substitutes for a well-nurtured relationship with Father. By following the relocation procedure of the Agreement, the Mother and Father would have properly explored and carefully considered these issues in their children’s lives before any hasty relocation.In contrast to the Father’s and children’s connection with New York, the Mother provided absolutely no excuse for failing to follow the agreed-upon relocation procedure and unilaterally moving to Florida. She has no tangible connection with Orlando and, in fact, there are no family members present in the whole State of Florida! Due to this void, the children are either left alone overnight when the Mother is absent or are being taken care by friends and biological strangers to them. Again, this cannot be a substitution for the Father’s visitation rights enforceable under the Judgement of Divorce and Separation Agreement.In accordance with the foregoing, the Father’s three Petitions are granted to the extent that the Judgement of Divorce and Separation Agreement are hereby enforced by ordering and requiring the children to move back to New York at the conclusion of the children’s school year on or before May 30, 2004. Upon the Mother’s failure to comply with this directive, and on motion or letter application to the Court on notice to all counsel, custody of the children shall be granted to the Father, who is hereby found to be a fit and proper parent and custodian. The appearance scheduled before the undersigned for February 27, 2004, is hereby cancelled.With respect to the Father’s Support Petition, that Petition is also granted and the Order of Support is thereby suspended from July 29, 2003, until the Mother relocates back to New York (see Domestic Relations Law §241). That matter is hereby referred back to Support Magistrate Diane M. Dwyer for further proceedings on February 27, 2004, in accord with this decision.Pursuant to Section 1113 of the Family Court Act, an appeal from this order must be taken within 30 days of receipt of the order by appellant in Court, 35 days from the date of mailing by the Clerk of the Court, or 30 days after service by a party or the law guardian upon the appellant, whichever is earliest.This constitutes the decision and order of the Court.FootNotes:[1] Throughout the course of these proceedings, the Father was represented by privately retained counsel, Keith Richman, Esq.; the Mother was represented by Paul Guttenberg Esq. and a Law Guardian, Lawrence Weinreich, Esq., represented the children.[2] Although the hearing on Enforcement and Modification was not completed until January 23, 2004, Counsel has not informed this Court of any proceeding instituted by the Mother in Supreme Court seeking permission to relocate. n
