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IN RE: Rebecca L. LANG–LOEB, Petitioner–Appellant, v. John F. O'NEILL, Respondent–Respondent.

IN RE: John F. O'Neill, Petitioner–Respondent, v. Rebecca L. Lang–Loeb, Respondent–Appellant.

Decided: October 05, 2012

PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 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.

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 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 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145) 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 A.D.3d 1761, 1761–1762, 913 N.Y.S.2d 847; Matter of Murphy v. Peace, 72 A.D.3d 1626, 1626–1627, 899 N.Y.S.2d 493). 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 A.D.3d 517, 518, 817 N.Y.S.2d 127; see Matter of Carter v. Kratzenberg, 209 A.D.2d 990, 619 N.Y.S.2d 456; Rybicki v. Rybicki, 176 A.D.2d 867, 871, 575 N.Y.S.2d 341).

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.