Opinion
2014-07-9
Roseanne MAGEE, respondent, v. Thomas MAGEE, appellant.
Johnson & Cohen, LLP, Pearl River, N.Y. (Amy M. Eisenberg of counsel), for appellant. Alysia R. Baker, Goshen, N.Y., for respondent.
Johnson & Cohen, LLP, Pearl River, N.Y. (Amy M. Eisenberg of counsel), for appellant. Alysia R. Baker, Goshen, N.Y., for respondent.
Carla S. Wise, Goshen, N.Y., attorney for the children.
In a matrimonial action in which the parties were divorced by a judgment dated June 24, 2010, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Currier Woods, J.) dated April 30, 2013, as, without a hearing, in effect, denied those branches of his motion which were to modify the parties' stipulation of settlement dated May 11, 2010, which was incorporated but not merged into the parties' judgment of divorce, so as to award him, inter alia, sole custody of the subject children or, alternatively, liberal visitation with them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
“Modification of an existing visitation arrangement is permissible only upon the showing of a material change of circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child” ( Vaccaro v. Vaccaro, 83 A.D.3d 691, 919 N.Y.S.2d 898). “[O]ne who seeks a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing” (Matter of Collazo v. Collazo, 78 A.D.3d 1177, 911 N.Y.S.2d 658). Contrary to the father's contention, the Supreme Court properly denied, without a hearing, his motion to modify the provisions of the parties' stipulation of settlement regarding custody and visitation ( see Matter of Sullivan v. Moore, 95 A.D.3d 1223, 944 N.Y.S.2d 641;Matter of Francois v. Grimm, 84 A.D.3d 1082, 924 N.Y.S.2d 275;Matter of Figueroa v. Lewis, 81 A.D.3d 823, 916 N.Y.S.2d 833;Matter of Mazurkiewicz v. Pindor–Mazurkiewicz, 80 A.D.3d 615, 616, 914 N.Y.S.2d 657). The father's assertions were unsubstantiated and conclusory or did not allege a material change in circumstances. Accordingly, he failed to make the requisite showing ( see Matter of Palmiotti v. Piscitelli, 100 A.D.3d 637, 638, 953 N.Y.S.2d 255;Matter of Aronowich–Culhane v. Fournier, 94 A.D.3d 1114, 1115, 943 N.Y.S.2d 174). BALKIN, J.P., AUSTIN, LaSALLE and BARROS, JJ., concur.