From Casetext: Smarter Legal Research

OLDS v. BINYARD

Appellate Division of the Supreme Court of New York, Second Department
Jul 14, 2009
64 A.D.3d 658 (N.Y. App. Div. 2009)

Opinion

No. 2008-04955.

July 14, 2009.

In related child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Graham, J.), dated May 2, 2008, which denied his motion to vacate an order of the same court dated October 13, 2006, entered upon his default in appearing or answering, granting the petition of a maternal aunt for an award of custody of the subject child, and denied, without a hearing, his petition to modify the order dated October 13, 2006.

Matthew M. Lupoli, Flushing, N.Y., for appellant.

Jeffrey C. Bluth, Brooklyn, N.Y., for petitioner-respondent.

Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter and Barbara H. Dildine of counsel), attorney for the child.

Before: Mastro, J.P., Dickerson, Eng and Hall, JJ., concur.


Ordered that the order is affirmed, without costs or disbursements.

The Family Court providently exercised its discretion in denying the father's motion to vacate the custody order entered upon his default as the father failed to demonstrate either a reasonable excuse for the default or a meritorious defense to the petition for custody ( see Matter of Taylor v Staples, 33 AD3d 1089; Matter of Burns v Carriere-Knapp, 278 AD2d 542).

Additionally, the Family Court properly denied, without a hearing, the father's petition to modify the custody order. Contrary to the father's contention, the Family Court applied the appropriate standard ( see Matter of Metcalf v Odums, 35 AD3d 865; Matter of Fishburne v Teelucksingh, 34 AD3d 804; Matter of Guinta v Doxtator, 20 AD3d 47, 51). Here, the father failed to make a sufficient showing of a change of circumstances to warrant a hearing ( see Spratt v Fontana, 46 AD3d 670; McNally v McNally, 28 AD3d 526).


Summaries of

OLDS v. BINYARD

Appellate Division of the Supreme Court of New York, Second Department
Jul 14, 2009
64 A.D.3d 658 (N.Y. App. Div. 2009)
Case details for

OLDS v. BINYARD

Case Details

Full title:In the Matter of RENESSTA OLDS, Respondent, v. ROBERT BINYARD, Appellant…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 14, 2009

Citations

64 A.D.3d 658 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 5866
882 N.Y.S.2d 495

Citing Cases

Salvatore v. Salvatore

"`Modification of an existing custody arrangement is permissible only upon a showing that there has been a…

Monasterska v. Burns

The Supreme Court also properly denied that branch of the mother's motion which was to modify the custody…