Gonia v. Gonia

231 A.D.2d 718, 647 N.Y.S.2d 998

In the Matter of Karen A. Gonia, Respondent,

Gene S. Gonia, Appellant.

Supreme Court, Appellate Division, Second Department, New York

(September 30, 1996)

CITE TITLE AS: Matter of Gonia v Gonia

In a proceeding pursuant to Family Court Act article 6, the father purportedly appeals from an ex parte order of the Family Court, Dutchess County (Pagones, J.), entered August 14, 1995, which granted the mother permission to relocate to another State with the parties’ infant daughters.

Ordered that on the Court’s own motion, the father’s notice of appeal is treated as an application pursuant to CPLR 5704 to vacate an ex parte order; and it is further,

Ordered that the application is granted, without costs or disbursements, and the ex parte order is vacated, without prejudice to the mother’s making a new motion before the Family *719 Court, on notice to the father, for permission to relocate with the children. The status quo may be maintained until the determination of the new motion on condition that the mother make such application within 30 days after service upon her of a copy of this decision and order with notice of entry; in the event that the mother fails to so timely move, she is directed to comply with the order of the Family Court, Dutchess County (Dolan, J.), dated May 17, 1993.

Contrary to the assertions contained in the order under review, the record contains absolutely no indication that the parties ever discussed, contemplated, or consented to the mother’s relocation to Georgia with the children. The order therefore appears to be beyond the scope of the parties’ custody settlement. Moreover, although the order purportedly decided a motion made by the mother, the record contains no such motion and no answering papers to any such motion.

Here, the Family Court granted the mother permission to relocate without giving the father notice and an opportunity to be heard, without inquiring as to whether the father would consent to relocation, and without holding a hearing to determine whether relocation would be in the children’s best interests (see, Tropea v Tropea, 87 NY2d 727). Under the circumstances, the order must be vacated without prejudice to the mother’s making a new motion, before the Family Court, on notice to the father, for permission to relocate with the children.

Rosenblatt, J. P., Ritter, Copertino and Santucci, JJ., concur.