Opinion
2014-00980
11-26-2014
Jennifer WHITEHEAD, respondent, v. Adam WHITEHEAD, appellant.
Adam Whitehead, Mount Kisco, N.Y., appellant pro se. Banks Curran Schwam and Squirrell, LLP, Mount Kisco, N.Y. (David J. Squirrell of counsel), for respondent.
Adam Whitehead, Mount Kisco, N.Y., appellant pro se.
Banks Curran Schwam and Squirrell, LLP, Mount Kisco, N.Y. (David J. Squirrell of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
Opinion
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Colangelo, J.), dated November 19, 2013, as denied, without a hearing, those branches of his motion which were to hold the plaintiff in civil contempt and to modify the custody and visitation provisions of a so-ordered stipulation entered December 14, 2010, and granted those branches of the plaintiff's cross motion which were for awards of child support arrears and an attorney's fee.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied, without a hearing, that branch of the appellant's motion which was to modify the parties' existing custody and visitation arrangements. In order to modify an existing court-sanctioned custody or visitation arrangement, there must be a showing that there has been a change in circumstances such that modification is required to protect the best interests of the child (see Matter of Kortlang v. Kortlang, 92 A.D.3d 785, 785, 938 N.Y.S.2d 457 ; Matter of Manzella v. Milano, 82 A.D.3d 1242, 1242, 919 N.Y.S.2d 854 ; Matter of Arduino v. Ayuso, 70 A.D.3d 682, 682, 892 N.Y.S.2d 885 ). “A party seeking such a modification is not automatically entitled to a hearing on the application, but first must make an evidentiary showing sufficient to warrant a hearing” (Matter of Fitje v. Fitje, 87 A.D.3d 599, 600, 927 N.Y.S.2d 918 ; see Matter of Deochand v. Deochand, 80 A.D.3d 609, 610, 914 N.Y.S.2d 668 ; Matter of Mazzola v. Lee, 76 A.D.3d 531, 906 N.Y.S.2d 83 ). Moreover, “a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child's best interest” (Matter of Hom v. Zullo, 6 A.D.3d 536, 536, 775 N.Y.S.2d 66 ; see Matter of Perez v. Sepulveda, 51 A.D.3d 673, 857 N.Y.S.2d 659 ; Matter of Smith v. Molody–Smith, 307 A.D.2d 364, 762 N.Y.S.2d 818 ). Here, the defendant failed to make the necessary showing entitling him to a hearing regarding that branch of his motion which was for a change of custody or to modify the parties' visitation arrangement (see McNally v. McNally, 28 A.D.3d 526, 816 N.Y.S.2d 98 ; cf. Anonymous 2011–1 v. Anonymous 2011–2, 102 A.D.3d 640, 958 N.Y.S.2d 181 ). Moreover, the court's determination that the best interests of the parties' children did not warrant modification of prior orders of custody and visitation had a sound and substantial basis in the record.
The Supreme Court also properly denied that branch of the defendant's motion which was to hold the plaintiff in contempt for her alleged violations of the judgment of divorce, as modified by the parties' stipulations. Contrary to the defendant's contention, his papers failed to sufficiently allege that the plaintiff significantly defeated, impaired, impeded, or prejudiced his rights (see Judiciary Law § 753[A] ; Matter of Perez v. Richmond, 104 A.D.3d 692, 692, 959 N.Y.S.2d 925 ).
The Supreme Court providently exercised its discretion in awarding the plaintiff the sum of $2,000 as an attorney's fee (see Alleva v. Alleva, 112 A.D.3d 567, 977 N.Y.S.2d 267 ).
The defendant's remaining contentions are without merit.