SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1168 

CA 12-00643 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. 

 

BETH ANNE GRANT, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

SCOTT C. GRANT, DEFENDANT-RESPONDENT. 

 

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (SHARI JO REICH OF COUNSEL),

FOR PLAINTIFF-APPELLANT. 

COHEN & LOMBARDO, P.C., BUFFALO (MICHELLE M.F. SCHWACH OF COUNSEL),

FOR DEFENDANT-RESPONDENT. 

CHRISTOPHER J. BRECHTEL, ATTORNEY FOR THE CHILDREN, BUFFALO, FOR

GARRETT G., IAN G. AND ALEXIS G. 

 

Appeal from an order of the Supreme Court, Erie County (Donna M.

Siwek, J.), entered October 14, 2011. The order denied that part of

the motion of plaintiff seeking permission to relocate with the

parties’ children. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by vacating the provision that, “if

Plaintiff relocates to Ohio, notwithstanding this Court’s Decision,

the Defendant shall be granted custody of the parties’ three (3) minor

children with an appropriate access schedule to be arranged between

the children and the Plaintiff” and as modified the order is affirmed

without costs. 

Memorandum: Plaintiff mother moved, inter alia, to modify the

parties’ custody arrangement by permitting her to relocate to Ohio

with the parties’ three children. Pursuant to their custody

arrangement, the parties shared joint custody of the children, but the

mother had primary physical custody and defendant father had

visitation. Additionally, the parties had agreed that the children

would not be removed from Erie County without the father’s consent or

in the absence of a court order. The father opposed the mother’s

motion and cross-moved for custody in the event that the mother

relocates. Following a hearing regarding only the issue of

relocation, Supreme Court denied that part of the mother’s motion

seeking permission to relocate with the children and further ordered

that, “if the [mother] relocates to Ohio, notwithstanding this Court’s

Decision, the [father] shall be granted custody of the parties’ three

(3) minor children with an appropriate access schedule to be arranged

between the children and the [mother].” The court reserved decision
-2- 1168 

CA 12-00643 

on all other relief requested by the parties.

We conclude that the court properly considered the factors set

forth in Matter of Tropea v Tropea (87 NY2d 727, 740-741) 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 children’s best interests (see Matter of Murphy v Peace, 72 AD3d

1626, 1626-1627; Matter of Seyler v Hasfurter, 61 AD3d 1437, 1437;

Matter of Jones v Tarnawa, 26 AD3d 870, 871, lv denied 6 NY3d 714). 

“The determination of the trial court, which heard and observed the

witnesses, is entitled to great deference and should not be disturbed

where, as here, it had a sound and substantial basis in the record”

(Salerno v Salerno, 273 AD2d 818, 818; see Matter of Battaglia v

Hopkins, 280 AD2d 953, 954). We modify the order, however, by

vacating the provision that custody of the children will be

transferred to the father in the event that the mother relocates to

Ohio. 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[ren]’s best interests at that time”

(Matter of Brzozowski v Brzozowski, 30 AD3d 517, 518; see Matter of

Carter v Kratzenberg, 209 AD2d 990, 990; Rybicki v Rybicki, 176 AD2d

867, 871). 

We further conclude that, contrary to the mother’s contention,

the court did not fail to render a decision regarding the other relief

requested in her motion, but rather expressly reserved decision on

those issues. Thus, the mother’s remaining contentions are not

properly before us.

Entered: December 28, 2012 Frances E. Cafarell

Clerk of the Court