Opinion
156 CAF 16–01101
02-09-2018
In the Matter of Jerry W. GWOREK, Petitioner–Appellant, v. Mary M. GWOREK, Respondent–Respondent. (Appeal No. 1.)
DEBORAH J. SCINTA, ORCHARD PARK, FOR PETITIONER–APPELLANT. ELIZABETH CIAMBRONE, BUFFALO, FOR RESPONDENT–RESPONDENT. CATHERINE E. MARRA, ATTORNEY FOR THE CHILD, BUFFALO. MINDY L. MARRANCA, ATTORNEY FOR THE CHILDREN, BUFFALO.
DEBORAH J. SCINTA, ORCHARD PARK, FOR PETITIONER–APPELLANT.
ELIZABETH CIAMBRONE, BUFFALO, FOR RESPONDENT–RESPONDENT.
CATHERINE E. MARRA, ATTORNEY FOR THE CHILD, BUFFALO.
MINDY L. MARRANCA, ATTORNEY FOR THE CHILDREN, BUFFALO.
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum:In appeal No. 1, petitioner father appeals from an order that dismissed, without a hearing, his petition seeking to modify the parties' existing order of custody and visitation (existing order). In appeal No. 2, the father appeals from the same order as in appeal No. 1, and we therefore dismiss the appeal from the order in appeal No. 2 as duplicative of the appeal from the order in appeal No. 1 (see generally Burnett v. City of New York , 104 A.D.3d 437, 438, 961 N.Y.S.2d 81 [1st Dept. 2013] ). In appeal No. 3, the father appeals from an order that dismissed, without a hearing, a subsequent, similar petition for modification.
Contrary to the father's contentions in appeal Nos. 1 and 3, we conclude that Family Court did not abuse its discretion in sua sponte dismissing the respective petitions without conducting a hearing. "A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order ... and, here, the [father] failed to make a sufficient evidentiary showing of a change in circumstances to require a hearing" with respect to either petition ( Matter ofConsilio v. Terrigino , 114 A.D.3d 1248, 1248, 980 N.Y.S.2d 854 [4th Dept. 2014] [internal quotation marks omitted]; see Matter ofSierak v. Staring , 124 A.D.3d 1397, 1398, 1 N.Y.S.3d 696 [4th Dept. 2015] ).
We reject the father's further contention in appeal No. 3 that the court erred in modifying the existing order as a matter of law, without a hearing on the second petition, to eliminate a provision that improperly delegated decision-making authority with respect to visitation to one of the children's counselors (see generally Matter of Henrietta D. v. Jack K. , 272 A.D.2d 995, 995, 707 N.Y.S.2d 560 [4th Dept. 2000] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.