Opinion
2011-08-9
In the Matter of Janine FITJE, appellant,v.Justin FITJE, respondent.
Bernard A. Nathan, West Islip, N.Y., for appellant.
In related custody and visitation proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Lynaugh, J.), dated October 19, 2010, which, without a hearing, dismissed her petition to modify the custody and visitation provisions of a judgment of divorce of the Supreme Court, Suffolk County (Kelly, J.), dated May 5, 2009, so as to award her sole custody of the subject children and to reduce the father's visitation with the subject children.
ORDERED that the order is affirmed, without costs or disbursements.
An application to modify the custody and visitation provisions of a judgment that are based upon a stipulation of the parties will not be granted absent a showing of a sufficient change in circumstances from the time of the stipulation, and that the modification would be in the best interests of the children ( see Matter of Deochand v. Deochand, 80 A.D.3d 609, 914 N.Y.S.2d 668; Matter of Skeete v. Hamilton, 78 A.D.3d 1187, 1187–1188, 911 N.Y.S.2d 667; Spratt v. Fontana, 46 A.D.3d 670, 671, 847 N.Y.S.2d 220). 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 ( see Matter of Mazzola v. Lee, 76 A.D.3d 531, 906 N.Y.S.2d 83; Matter of Grassi v. Grassi, 28 A.D.3d 482, 812 N.Y.S.2d 638; Matter of Timson v. Timson, 5 A.D.3d 691, 692, 774 N.Y.S.2d 751; Matter of Carpenter v. Whitaker, 5 A.D.3d 681, 774 N.Y.S.2d 761; Matter of Blake v. Vilbig, 288 A.D.2d 470, 733 N.Y.S.2d 892). Here, the conclusory, unsubstantiated, and nonspecific allegations set forth in the mother's petition failed to meet this standard, and the Family Court properly dismissed the petition without a hearing ( see Matter of Deochand v. Deochand, 80 A.D.3d 609, 914 N.Y.S.2d 668; Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 897 N.Y.S.2d 639; Salvatore v. Salvatore, 68 A.D.3d 966, 967, 893 N.Y.S.2d 63; Matter of Blackstock v. Price, 51 A.D.3d 914, 858 N.Y.S.2d 733; Spratt v. Fontana, 46 A.D.3d 670, 847 N.Y.S.2d 220; Matter of Davis v. Venditto, 45 A.D.3d 837, 846 N.Y.S.2d 365).