Kretser v. Kretser , 91 A.D.2d 797 ( 1982 )

— Appeal from an order of the Family Court of Rensselaer County (Reeves, J.), entered April 28,1981, which, inter alia, ordered petitioner to furnish support as provided in the separation agreement and divorce decree between the parties. Petitioner and respondent were formerly married to each other and are the parents of a daughter, Maia Marie Kretser, born on March 1, 1972. On January 23, 1974 the parties executed a separation agreement, the terms of which were incorporated into, but not merged in, a judgment of divorce rendered on July 25,1975. Pursuant to the agreement, respondent was given care, custody and control of the parties’ child during her minority, subject to extensive and detailed rights of temporary custody or visitation given to petitioner, and with these circumstances prevailing on September 12, 1980 respondent and the child left New York and took up residence in California. In response, by an order to show cause obtained at a Special Term of Supreme Court in Rensselaer County on September 19, 1980, petitioner commenced the instant proceeding wherein he seeks an order suspending his alimony and child support payments under the agreement nunc pro tunc from September 12, 1980. He bases his argument upon respondent’s move to California with the child which he alleges was in violation of his rights to temporary custody of the child as specified in the agreement. After the matter was transferred to Family Court and a hearing was held thereon, however, Family Court ordered petitioner to furnish support as provided in the agreement, and the present appeal ensued. We hold that the challenged order should be affirmed. In so ruling, we initially note that it is questionable upon the instant record whether respondent did breach the separation agreement by moving to California with her daughter. Regarding this issue, it is significant that the agreement specifically provided that neither party should remove the child from the country without the other party’s consent, thereby inferring that the child could be moved from State to State without consent. Additionally, each of the parties was given maximum freedom in choosing his or her own individual place of residence as long as the choice did not violate another provision of the agreement, and while under certain specified conditions payments of alimony and support were to cease, none of these related to the removal of the child to another State. The evidence also indicates that respondent did not move to California to spite petitioner or to deny him the opportunity to exercise his rights to temporary custody of the child and that she is still willing to co-operate with him in the exercise of those rights. Given all these circumstances, even though petitioner’s exercise of his temporary custody rights has obviously been rendered more difficult by respondent’s action, we cannot say that Family Court abused its discretion in directing petitioner to continue to furnish support as provided in the separation agreement (cf. Conrad v Conrad, 64 AD2d 751, app dsmd 46 NY2d 849; see, also, Strahl v Strahl, 49 NY2d 1036). For the reasons just stated we cannot accept the rationale of the dissenting opinion to the effect that the relief sought by petitioner should be granted, and there is likewise not a sufficient basis in the present record for directing respondent to return to New York or for holding hearings relative to the advisability of continuing the existing custodial arrangements. In this regard, it is noteworthy that petitioner has requested in this proceeding only the suspension of his alimony and child support payments under the separation agreement, and he has not sought to compel respondent to return to New York or to change the agreement’s provisions for the custody of the parties’ child. Additionally, it is also most significant that there has been presented no evidence indicating that respondent is not a loving mother who is willing and able to care for her child, and while the dissent places great emphasis upon respondent’s religious and philosophical beliefs and practices, these beliefs and practices certainly do not establish respondent to be an unfit mother, nor do they justify this court’s directing, sua sponte, a hearing upon the issue of custody. Lastly, examination of the record does not establish a clear violation of the separation agreement by respondent as claimed in the dissenting opinion. As previously noted, respondent is entitled under the agreement to live wheresoever she desires and petitioner’s consent is not required for the removal of the child to another State. Also, petitioner was informed as to the whereabouts of his child immediately after the move to California by respondent on September 12, 1980. That same night petitioner admittedly learned of the move to California and, according to his brief, he was out of communication with respondent and the child only until six days later on September 18, 1980. Order affirmed, with costs. Mahoney, P. J., Main and Yesawich, Jr., JJ., concur; Kane and Mikoll, JJ., dissent in the following memorandum by Kane, J.