Caroll v. Carroll

In a matrimonial action in which the parties were divorced by judgment entered August 27, 1992, the plaintiff father appeals from an order of the Supreme Court, Suffolk County (Dunn, J.), dated December 13, 1993, which, after a hearing, denied his petition to enjoin the relocation of the defendant mother to the State of Florida with the parties’ two children. Ordered that the order is affirmed, with costs. Pursuant to the parties’ judgment of divorce, the defendant was given exclusive custody of the parties’ two children, while the plaintiff was awarded limited visitation amounting to approximately 21 days a year, including two weeks in the summer. The plaintiff never sought to modify this judgment to obtain more frequent or regular visitation with his children, nor did he consistently take advantage of even these limited visitation rights (cf., Bonfiglio v Bonfiglio, 134 AD2d 426). Under the circumstances, where the plaintiff’s right to limited visitation remains unaffected by the defendant’s relocation to the State of Florida with her new husband, the Supreme Court properly denied the plaintiff’s petition to restrain that relocation (cf., Matter of Radford v Propper, 190 AD2d 93). Bracken, J. P., Joy, Friedmann and Florio, JJ., concur.