Opinion
November 3, 1997
Appeal from the Supreme Court, Suffolk County (Floyd, J.).
Ordered that the orders are affirmed, without costs or disbursements.
The record reveals that the defendant mother persistently interfered with the plaintiff father's visitation rights in violation of both the stipulation of settlement and directives from the court. This interference culminated in an unauthorized move of the parties' children to New Mexico. In view of the totality of the circumstances, the court's determination that it was in the best interests of the children to grant exclusive custody to the plaintiff father has a sound and substantial basis in the record and is not contrary to the weight of the credible evidence (see, Eschbach v. Eschbach, 56 N.Y.2d 167; Friederwitzer v Friederwitzer, 55 N.Y.2d 89; Young v. Young, 212 A.D.2d 114; Maloney v Maloney, 208 A.D.2d 603; Matter of Sullivan v. Sullivan, 190 A.D.2d 852). Further, in light of the above facts, the court did not improvidently exercise its discretion in ordering that the defendant mother's visitation with the children take place in Suffolk County and be supervised (see, Silver v. Silver, 100 A.D.2d 543).
Finally, the court did not err in denying the plaintiff father's application for attorney's fees pursuant to the stipulation of settlement between the parties. Under the terms of the stipulation, a party who "defaulted in the performance of the terms or provisions" of the stipulation would be liable to the other party for attorney's fees incurred in enforcing performance. However, a condition precedent to seeking attorney's fees was the service of a 15-day notice of default. Here, there is no proof that this condition precedent was complied with.
The defendant mother's remaining contentions are without merit or academic in light of our determination.
Ritter, J. P., Copertino, Florio and Luciano, JJ., concur.