Opinion
279 CAF 19-01775
03-26-2021
In the Matter of Derek Ramon JOHNSON, Petitioner-Respondent-Appellant, v. Kenya Iesha JOHNSON, Respondent-Appellant-Respondent. In the Matter of Kenya Iesha Johnson, Petitioner-Appellant-Respondent, v. Derek Ramon Johnson, Respondent-Respondent-Appellant. (Appeal No. 1.)
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT-RESPONDENT AND PETITIONER-APPELLANT-RESPONDENT. D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PETITIONER-RESPONDENT-APPELLANT AND RESPONDENT-RESPONDENT-APPELLANT. SCOTT A. OTIS, WATERTOWN, ATTORNEY FOR THE CHILD.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT-RESPONDENT AND PETITIONER-APPELLANT-RESPONDENT.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PETITIONER-RESPONDENT-APPELLANT AND RESPONDENT-RESPONDENT-APPELLANT.
SCOTT A. OTIS, WATERTOWN, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by awarding primary physical residence of the parties’ child to petitioner-respondent and as modified the order is affirmed without costs.
Memorandum: In appeal No. 1, respondent-petitioner mother appeals and petitioner-respondent father cross-appeals from an order that, inter alia, awarded the parties joint custody of their child with primary physical residence to the mother and denied the mother's request to relocate with the child from Jefferson County to North Carolina. In appeal No. 2, the father appeals from an order denying his motion to reconstruct trial testimony that is absent from the record in appeal No. 1. In appeal No. 3, the father appeals from an order denying his motion to settle the record in appeal No. 1 to include his original and amended petitions seeking, inter alia, joint custody of the child.
Addressing first appeal Nos. 2 and 3, we reject the father's contention in those appeals that Family Court erred in denying his motions to reconstruct and settle the record in appeal No. 1. The father stipulated to the record in appeal No. 1 prior to filing those motions, and the court properly considered those motions as seeking to vacate that stipulation (see generally O'Shei v. FMC Corp. , 147 A.D.2d 985, 985, 538 N.Y.S.2d 750 [4th Dept. 1989] ; Gayden v. City of Rochester , 145 A.D.2d 995, 995, 538 N.Y.S.2d 725 [4th Dept. 1988] ). However, "[o]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation" ( Hallock v. State of New York , 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ; see McCoy v. Feinman , 99 N.Y.2d 295, 302, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002] ; Matter of Ruiz v. Rivera , 300 A.D.2d 402, 403, 751 N.Y.S.2d 752 [2d Dept. 2002] ), and the father has made no such showing here (see Hale v. Meadowood Farms of Cazenovia, LLC , 104 A.D.3d 1330, 1332, 962 N.Y.S.2d 562 [4th Dept. 2013] ). We therefore affirm the orders in appeal Nos. 2 and 3.
The mother contends on her appeal in appeal No. 1 that the court erred in denying her request to relocate with the child to North Carolina. We reject that contention. Inasmuch as this case involves an initial custody determination, the mother is correct that "it cannot properly be characterized as a relocation case to which the application of the factors set forth in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740-741, 642 N.Y.S.2d 575, 665 N.E.2d 145 (1996) need be strictly applied" ( Matter of Saperston v. Holdaway , 93 A.D.3d 1271, 1272, 940 N.Y.S.2d 728 [4th Dept. 2012], appeal dismissed 19 N.Y.3d 887, 948 N.Y.S.2d 577, 971 N.E.2d 858 [2012], 20 N.Y.3d 1052, 961 N.Y.S.2d 828, 985 N.E.2d 423 [2013] ; see Matter of Quistorf v. Levesque , 117 A.D.3d 1456, 1456-1457, 984 N.Y.S.2d 773 [4th Dept. 2014] ). "Although a court may consider the effect of a parent's relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination" ( Saperston , 93 A.D.3d at 1272, 940 N.Y.S.2d 728 ; see Matter of Torkildsen v. Torkildsen , 72 A.D.3d 1405, 1406, 900 N.Y.S.2d 193 [3d Dept. 2010] ). Here, upon weighing all the appropriate factors (see Matter of Jacobson v. Wilkinson , 128 A.D.3d 1335, 1336, 7 N.Y.S.3d 760 [4th Dept. 2015] ), we agree with the court's determination that "the child[ ]’s relationship with [the father] would be adversely affected by the proposed relocation because of the distance between [Jefferson] County and [North Carolina]" ( Matter of Jones v. Tarnawa , 26 A.D.3d 870, 871, 809 N.Y.S.2d 742 [4th Dept. 2006], lv denied 6 N.Y.3d 714, 816 N.Y.S.2d 749, 849 N.E.2d 972 [2006] ; see Matter of Ramirez v. Velazquez , 91 A.D.3d 1346, 1347, 937 N.Y.S.2d 504 [4th Dept. 2012], lv denied 19 N.Y.3d 802, 2012 WL 1538354 [2012] ). The record establishes that, although the mother had stronger family ties to North Carolina than to New York, her plans for housing, employment, and schooling in North Carolina were not well developed, and the record further establishes that the child had shown a marked improvement in behavior after the father's parenting time with the child was increased under temporary custody orders issued prior to the trial (see generally Matter of Furman v. Furman , 168 A.D.2d 702, 702-703, 563 N.Y.S.2d 860 [3d Dept. 1990] ).
With respect to the father's cross appeal, we conclude as an initial matter that, even without the inclusion of the father's original and amended petitions in the record in appeal No. 1, the father has standing to cross-appeal from the order in that appeal inasmuch as he is aggrieved by the court's determination on the mother's petition. That determination is an initial custody determination, and the father's counsel made clear during oral summation at the conclusion of the trial that the father was seeking joint custody of the child with primary physical residence to him. Thus, the father "ha[s] a direct interest in the matter at issue that is affected by the result, and the adjudication [has] binding force against [his] rights, person or property" ( Matter of Valenson v. Kenyon , 80 A.D.3d 799, 799, 914 N.Y.S.2d 753 [3d Dept. 2011] ; see CPLR 5511 ).
Furthermore, we agree with the father on his cross appeal that there is not a sound and substantial basis in the record to support the court's determination that it is in the child's best interests to award the mother primary physical residence (see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 171-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Here, the record establishes that both parents were fit and had appropriate residences and financial resources to support the child, but the mother had repeatedly attempted to undermine the father's relationship with the child, while the father did not engage in such behavior (see Matter of Honsberger v. Honsberger , 144 A.D.3d 1680, 1680, 41 N.Y.S.3d 816 [4th Dept. 2016] ; Matter of Tuttle v. Tuttle , 137 A.D.3d 1725, 1726, 28 N.Y.S.3d 755 [4th Dept. 2016] ). " ‘It is well settled ... that [a] concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child ... as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent’ " ( Matter of LaMay v. Staves , 128 A.D.3d 1485, 1485, 8 N.Y.S.3d 811 [4th Dept. 2015] ). Therefore, although we agree with the court's determination that the parties should share joint custody of the child and "enjoy equal parenting time on an alternate week schedule," we modify the order in appeal No. 1 by awarding primary physical residence of the parties’ child to the father.