Krom v. Comerford

Sep 3, 1982

Versions:57 N.Y.2d 704

440 N.E.2d 786

454 N.Y.S.2d 701

1982 N.Y. LEXIS 3632

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to the Family Court of Ulster County for further proceedings. Both that court and the Appellate Division held, in reliance on our decision in Matter of Nehra v Uhlar (43 NY2d 242), that the petitioner was required to establish extraordinary circumstances as a predicate for any change in the prior custody order. While this case was on appeal we held in Friederwitzer v Friederwitzer (55 NY2d 89, 95) that “Nehra’s phrase ‘absence of extraordinary circumstances’ is to be read as ‘absence of countervailing circumstances on consideration of the totality of circumstances’, not that some particular, sudden or unusual event has occurred since the prior award”. Thus the case should be remitted to the Family Court solely for reconsideration in light of the Friederwitzer decision. It should be emphasized that we do not intend by this disposition to suggest that we are of the view that the court should have granted petitioner’s application or should do so upon remittal. On the contrary, the facts of this case, including the respondent’s intention to take the child to Texas, *706present a custody question clearly within the Family Court’s sound discretion (see, e.g., Weiss v Weiss, 52 NY2d 170; Priebe v Priebe, 55 NY2d 997; Dean v Dean, 79 AD2d 876, mot for lv to app den 52 NY2d 706; Milici v Milici, 57 AD2d 946).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and matter remitted to Family Court, Ulster County, for further proceedings’ in accordance with the memorandum herein.