McMAHAN v. McMAHAN

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Supreme Court, Appellate Division, Second Department, New York.

David Bruce McMAHAN, respondent, v. Elena McMAHAN, appellant.

Decided: May 26, 2009

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, THOMAS A. DICKERSON, and JOHN M. LEVENTHAL, JJ. Stark & Associates, Brooklyn, N.Y. (Yonatan S. Levoritz of counsel), for appellant. DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y., and Cohen Lans, LLP, New York, N.Y. (Robert Stephen Cohen and Raimonde Schwarz of counsel), for respondent (one brief filed).

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Lubell, J.), dated August 15, 2007, as directed a hearing to aid in the determination of her motion for permission to relocate with the parties' children.

ORDERED that on the Court's own motion, the defendant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

Although the parties agreed in a stipulation dated March 10, 2005, that the mother could relocate to within a 90-mile radius of the marital residence, such an agreement is not dispositive, but rather, is a factor to be considered along with all of the other factors that the court should consider when determining whether the relocation is in the best interests of the children (see Rheingold v. Rheingold, 4 A.D.3d 406, 771 N.Y.S.2d 367;  see also Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741-742, 642 N.Y.S.2d 575, 665 N.E.2d 145;  Petroski v. Petroski, 24 A.D.3d 1295, 1296-1297, 808 N.Y.S.2d 852;  Savage v. Morrison, 262 A.D.2d 1077, 691 N.Y.S.2d 842).   Additionally, “[t]he submissions of the parties raised a host of serious and conflicting allegations on the issue of parental fitness” (Metzger v. Metzger, 240 A.D.2d 642, 659 N.Y.S.2d 300;  see Matter of Hughes v. Lane, 56 A.D.3d 555, 867 N.Y.S.2d 512).   Accordingly, the Supreme Court properly set the matter down for a hearing to aid in the determination of the motion.

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