DECISION ORDER
ORDERED that the order dated August 1, 2003, is affirmed insofar as appealed from; and it is further,
ORDERED that the order dated August 6, 2003, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
Although the parties agreed in their stipulation, incorporated but not merged into their judgment of divorce, that after August 1, 2001, the mother could relocate to within a 40-mile radius of the marital residence, such an agreement is not dispositive, but rather, is a factor to be considered along with all of the other factors the hearing court should consider when determining whether the relocation is in the best interests of the children ( see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741 n 2; Matter of Church v. Cohen, 266 A.D.2d 285; Savage v. Morrison, 262 A.D.2d 1077; Carlson v. Carlson, 248 A.D.2d 1026, 1028). Accordingly, the Supreme Court properly set the matter down for a hearing. Further, the Supreme Court providently exercised its discretion in appointing a law guardian to assist in determining the best interests of the children.
We have not considered the report submitted by the law guardian on this appeal ( see generally Weiglhofer v. Weiglhofer, 1 A.D.3d 786; Matter of Rueckert v. Reilly, 282 A.D.2d 608).
ALTMAN, J.P., GOLDSTEIN, CRANE and MASTRO, JJ., concur.