Opinion
2017–09825 Docket No. V–11865–08/17K
12-19-2018
In the Matter of Donna M. STONES, Appellant, v. Erick J. VANDENBERGE, Respondent.
Law Offices of Thomas F. Liotti, LLC, Garden City, N.Y. (Lucia Ciaravino), for appellant. Law Office of Joshua Adam Kittenplan, P.C., Commack, NY, for respondent.
Law Offices of Thomas F. Liotti, LLC, Garden City, N.Y. (Lucia Ciaravino), for appellant.
Law Office of Joshua Adam Kittenplan, P.C., Commack, NY, for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERIn a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Thomas A. Rademaker, J.), dated August 8, 2017. The order dismissed, without a hearing, the mother's petition to modify prior orders of custody and parental access, and prohibited the mother from filing any further petitions against the father without permission of the Family Court.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof prohibiting the mother from filing any further petitions against the father without permission of the Family Court; as so modified, the order is affirmed, without costs or disbursements.
Modification of an existing custody or parental access order is permissible only upon a showing that there has been a subsequent change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child (see Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Ruggiero v. Noe , 77 A.D.3d 959, 910 N.Y.S.2d 479 ; Matter of Pignataro v. Davis , 8 A.D.3d 487, 488, 778 N.Y.S.2d 528 ). "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" ( Matter of Leichter–Kessler v. Kessler , 71 A.D.3d 1148, 1149, 897 N.Y.S.2d 639 ; see Matter of Mazzola v. Lee , 76 A.D.3d 531, 531, 906 N.Y.S.2d 83 ; Matter of Riedel v. Riedel , 61 A.D.3d 979, 979, 876 N.Y.S.2d 907 ). Here, the mother's pro se petition failed to allege a sufficient change in circumstances between the issuance of the prior custody and parental access orders and the filing of her petition. Accordingly, we agree with the Family Court's dismissal of the mother's petition, without a hearing (see Matter of Valencia v. Ripley , 128 A.D.3d 711, 713, 9 N.Y.S.3d 112 ; Matter of Castagnini v. Hyman–Hunt , 123 A.D.3d 926, 926, 996 N.Y.S.2d 922 ; Macchio v. Macchio , 120 A.D.3d 560, 990 N.Y.S.2d 641 ). However, the Family Court, in dismissing the petition, should not have prohibited the mother from filing any further petitions against the father without permission of the Family Court. The court improvidently exercised its discretion in doing so. While public policy generally mandates free access to the courts (see Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL–CIO, 38 N.Y.2d 397, 404, 380 N.Y.S.2d 635, 343 N.E.2d 278 ), "a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will" ( Matter of Wieser v. Wieser , 83 A.D.3d 950, 950, 920 N.Y.S.2d 719 ; see Matter of Reiss v. Giraldo , 77 A.D.3d 759, 759, 908 N.Y.S.2d 600 ; Matter of Molinari v. Tuthill , 59 A.D.3d 722, 723, 875 N.Y.S.2d 495 ; Matter of Pignataro v. Davis , 8 A.D.3d at 489, 778 N.Y.S.2d 528 ). Under the circumstances presented here, in which the mother last filed a petition four years ago, the mother did not abuse the judicial process by filing the petition at issue (see Matter of Wieser v. Wieser , 83 A.D.3d at 950–951, 920 N.Y.S.2d 719 ; cf. Matter of Manwani v. Manwani , 286 A.D.2d 767, 768–769, 730 N.Y.S.2d 520 ).
DILLON, J.P., LEVENTHAL, CONNOLLY and CHRISTOPHER, JJ., concur.