Opinion
2012-11-14
Erichsen KOLLMAR, respondent, v. Eleanor KOLLMAR, appellant.
Anthony A. Capetola, Williston Park, N.Y. (Joey Michaels of counsel), for appellant. O'Neil & Burke, LLP, Poughkeepsie, N.Y. (William T. Burke of counsel), for respondent.
Anthony A. Capetola, Williston Park, N.Y. (Joey Michaels of counsel), for appellant.O'Neil & Burke, LLP, Poughkeepsie, N.Y. (William T. Burke of counsel), for respondent.
In an action for a divorce and ancillary relief, the mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated March 9, 2012, as, without a hearing, denied that branch of her motion which was, in effect, to modify the custody provisions of the parties' stipulation of settlement dated April 10, 2009, so as to award her primary residential custody of the subject children.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the mother's contention, the Supreme Court properly denied, without a hearing, that branch of her motion which was to modify the custody provisions of the parties' stipulation of settlement. “Modification 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;Matter of Grant v. Hunter, 64 A.D.3d 779, 779, 884 N.Y.S.2d 763 [internal quotation marks omitted]; Matter of Riedel v. Riedel, 61 A.D.3d 979, 979, 876 N.Y.S.2d 907 [internal quotation marks omitted]; see Sirabella v. Sirabella, 95 A.D.3d 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, quoting Matter of Leichter–Kessler v. Kessler, 71 A.D.3d at 1149, 897 N.Y.S.2d 639;see Matter of Grant v. Hunter, 64 A.D.3d at 779, 884 N.Y.S.2d 763;Matter of Riedel v. Riedel, 61 A.D.3d at 979, 876 N.Y.S.2d 907). Here, the mother failed to make an evidentiary showing of a change in circumstances 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 Deochand v. Deochand, 80 A.D.3d 609, 610, 914 N.Y.S.2d 668;Matter of Wakefield v. Wakefield, 74 A.D.3d 1213, 902 N.Y.S.2d 421;Matter of Grant v. Hunter, 64 A.D.3d at 779, 884 N.Y.S.2d 763;Matter of Blackstock v. Price, 51 A.D.3d 914, 915, 858 N.Y.S.2d 733;Matter of Davis v. Venditto, 45 A.D.3d 837, 838, 846 N.Y.S.2d 365).