Opinion
07-07-2016
In the Matter of Joseph M. BELROSE, Appellant, v. Mary Ellen BELROSE, Respondent.
Alexandra G. Verrigni, Rexford, for appellant. Dana L. Salazar, East Greenbush, for respondent. Elena Jaffe Tastensen, Saratoga Springs, attorney for the children.
Alexandra G. Verrigni, Rexford, for appellant.
Dana L. Salazar, East Greenbush, for respondent.
Elena Jaffe Tastensen, Saratoga Springs, attorney for the children.
Before: PETERS, P.J., LAHTINEN, EGAN JR., ROSE and CLARK, JJ.
Opinion
CLARK, J. Appeal from an order of the Family Court of Saratoga County (Jensen, J.), entered September 3, 2015, which sua sponte dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of two children (born in 2001 and 2005). Pursuant to a 2014 Family Court order, the mother had sole legal custody of the children and the parties shared physical custody on an alternating weekly basis. The order further provided that the father have full and free access to the children's educational and medical information, and directed the mother to sign the appropriate release forms and keep the father apprised of the children's educational and health care appointments. Thereafter, the father filed two enforcement petitions alleging that the mother failed to timely inform him of certain appointments. In May 2015, upon the parties' agreement, Family Court modified the prior order to the extent of directing that the mother apprise the father of the children's educational and medical appointments via email within 24 hours of their scheduling. In July 2015, the father filed this modification petition seeking sole custody of the children. Family Court dismissed the petition sua sponte, and the father appeals.
We affirm. A party seeking to modify an existing custodial arrangement must demonstrate “that ‘there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children’ ” (Matter of Harrell v. Fox, 137 A.D.3d 1352, 1354, 26 N.Y.S.3d 800 [2016], quoting Matter of Tyrel v. Tyrel, 132 A.D.3d 1026, 1026, 17 N.Y.S.3d 198 [2015] ). While pro se pleadings should be liberally construed (see Matter of Ford v. Baldi, 123 A.D.3d 1399, 1400, 999 N.Y.S.2d 605 [2014] ; Matter of Tod ZZ. v. Paula ZZ., 113 A.D.3d 1005, 1006, 979 N.Y.S.2d 710 [2014] ), a petition must “ ‘set forth sufficient facts which, if established at an evidentiary hearing, could afford a basis for granting the relief sought’ ” (Matter of Brennan v. Kestner, 124 A.D.3d 980, 981, 1 N.Y.S.3d 490 [2015], quoting Matter of Schnock v. Sexton, 101 A.D.3d 1437, 1438, 956 N.Y.S.2d 335 [2012] ). Where a petitioner “fails to make a sufficient evidentiary showing to warrant a hearing” (Matter of Harrell v. Fox, 137 A.D.3d at 1354, 26 N.Y.S.3d 800 [internal quotation marks and citations omitted] ), Family Court may deny a hearing and dismiss the petition sua sponte (see Matter of Strachan v. Gilliam, 129 A.D.3d 1679, 1679, 12 N.Y.S.3d 424 [2015], lvs. dismissed 26 N.Y.3d 994, 19 N.Y.S.3d 215, 41 N.E.3d 73 [2015] ; Matter of Lowe v. Bonelli, 129 A.D.3d 1135, 1137, 10 N.Y.S.3d 704 [2015] ).
We agree with Family Court that the father failed to make the requisite showing to warrant a hearing. Of the specific acts alleged in the petition and the attachment thereto, few occurred after the May 2015 order, and such allegations—namely, that the mother provided inaccurate or incomplete information on a Medicaid recertification application, changed a pick-up site on three occasions and canceled a session of co-parenting counseling—are insufficient to warrant a hearing (see Matter of Lowe v. Bonelli, 129 A.D.3d at 1137, 10 N.Y.S.3d 704 ; Matter of Taylor v. Jackson, 95 A.D.3d 1604, 1604, 945 N.Y.S.2d 465 [2012] ; Matter of Hudson v. Eck, 70 A.D.3d 1261, 1262, 896 N.Y.S.2d 218 [2010] ). Therefore, we find no error in Family Court dismissing the petition without a hearing. ORDERED that the order is affirmed, without costs.
PETERS, P.J., LAHTINEN, EGAN JR. and ROSE, JJ., concur.