Summary
affirming dismissal of modification of custody petition where "the mother failed to make an evidentiary showing sufficient to warrant a hearing"
Summary of this case from R.M. v. C.C.Opinion
2014-07-9
In the Matter of Eleanor ACWORTH, appellant, v. Erichsen KOLLMAR, respondent.
Klein Varble & Associates, P.C., Poughkeepsie, N.Y. (Brittney M. Kessel of counsel), for appellant. O'Neil & Burke, Poughkeepsie, N.Y. (William T. Burke of counsel), for respondent.
Klein Varble & Associates, P.C., Poughkeepsie, N.Y. (Brittney M. Kessel of counsel), for appellant. O'Neil & Burke, Poughkeepsie, N.Y. (William T. Burke of counsel), for respondent.
George E. Reed, Jr., White Plains, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Sammarco, J.), dated August 1, 2013, which, without a hearing, granted the father's motion to dismiss her petition to change custody of the subject children to her.
ORDERED that the order is affirmed, with costs.
In 2011, the mother moved in the Supreme Court, inter alia, in effect, to modify the custody provisions of the parties' stipulation of settlement dated April 10, 2009, so as to award her residential custody of the subject children. The Supreme Court, without a hearing, denied that branch of her motion. On appeal, this Court affirmed, holding that “the mother failed to make an evidentiary showing of a change in circumstances sufficient to warrant a hearing” ( Kollmar v. Kollmar, 100 A.D.3d 712, 713, 953 N.Y.S.2d 876).
Thereafter, the mother commenced this proceeding in the Family Court to change custody of the subject children to her. The father moved to dismiss the petition, and the Family Court, without a hearing, granted the father's motion.
“[M]odification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child” (Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 1148–1149, 897 N.Y.S.2d 639;see Nusbaum v. Nusbaum, 106 A.D.3d 791, 793, 964 N.Y.S.2d 628;Sirabella v. Sirabella, 95 A.D.3d 1296, 1296, 944 N.Y.S.2d 896). “A party seeking a change in visitation or custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing” ( Sirabella v. Sirabella, 95 A.D.3d at 1296, 944 N.Y.S.2d 896 [internal quotation marks omitted]; see Nusbaum v. Nusbaum, 106 A.D.3d at 793, 964 N.Y.S.2d 628;Matter of Grant v. Hunter, 64 A.D.3d 779, 779, 884 N.Y.S.2d 763;Matter of Riedel v. Riedel, 61 A.D.3d 979, 979, 876 N.Y.S.2d 907).
The allegations the mother raises in this proceeding were, for the most part, raised by the mother in her 2011 motion. As was the case with her 2011 motion, in this proceeding the mother failed to make an evidentiary showing sufficient to warrant a hearing ( see Sirabella v. Sirabella, 95 A.D.3d at 1296–1297, 944 N.Y.S.2d 896;Matter of Fitje v. Fitje, 87 A.D.3d 599, 600, 927 N.Y.S.2d 918;Matter of Wakefield v. Wakefield, 74 A.D.3d 1213, 902 N.Y.S.2d 421).
Accordingly, the Family Court properly granted the father's motion to dismiss the petition. MASTRO, J.P., DICKERSON, COHEN and MILLER, JJ., concur.