Opinion
438 CAF 19-01716
05-07-2021
In the Matter of Jose A. RODRIGUEZ, Petitioner-Appellant, v. Myrna RODRIGUEZ, Respondent-Respondent. In the Matter of Myrna Rodriguez, Petitioner-Respondent, v. Jose A. Rodriguez, Respondent-Appellant.
DAVID J. PAJAK, ALDEN, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT. LAW OFFICE OF PETER VASILION, WILLIAMSVILLE (PETER P. VASILION OF COUNSEL), FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT. MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILD. WILLIAM D. BRODERICK, JR., ELMA, ATTORNEY FOR THE CHILD. AUDREY ROSE HERMAN, BUFFALO, ATTORNEY FOR THE CHILD.
DAVID J. PAJAK, ALDEN, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.
LAW OFFICE OF PETER VASILION, WILLIAMSVILLE (PETER P. VASILION OF COUNSEL), FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT.
MARY ANNE CONNELL, BUFFALO, ATTORNEY FOR THE CHILD.
WILLIAM D. BRODERICK, JR., ELMA, ATTORNEY FOR THE CHILD.
AUDREY ROSE HERMAN, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner-respondent father appeals from an order that effectively granted the motions of respondent-petitioner mother to dismiss his petitions seeking modification of a prior consent order of custody and visitation, and his other petitions alleging that the mother violated that prior consent order. We affirm.
Contrary to the father's contention, Family Court did not err in granting the mother's motions without a hearing. It is well settled that "[o]ne who seeks to modify an existing order of [custody and] visitation is not automatically entitled to a hearing [and] must make some evidentiary showing sufficient to warrant it" ( Matter of Richard R.G. v. Rebecca H. , 34 A.D.3d 1312, 1312, 825 N.Y.S.2d 597 [4th Dept. 2006], lv denied 8 N.Y.3d 804, 830 N.Y.S.2d 700, 862 N.E.2d 792 [2007] [internal quotation marks omitted]; see Matter of Moreno v. Elliott , 170 A.D.3d 1610, 1612, 94 N.Y.S.3d 500 [4th Dept. 2019] ). Here, with respect to his modification petitions, the father failed to make a sufficient evidentiary showing of a change in circumstances to require a hearing (see Matter of Gworek v. Gworek [appeal No. 1], 158 A.D.3d 1304, 1304, 68 N.Y.S.3d 365 [4th Dept. 2018] ; Matter of Warrior v. Beatman , 70 A.D.3d 1358, 1359, 893 N.Y.S.2d 786 [4th Dept. 2010], lv denied 14 N.Y.3d 711, 2010 WL 1854447 [2010] ). With respect to the father's violation petitions, a hearing is required only where the "petitions set forth sufficient allegations ‘that, if established at an evidentiary hearing, could support granting the relief sought’ " ( Matter of Buck v. Buck , 154 A.D.3d 1134, 1135, 62 N.Y.S.3d 606 [3d Dept. 2017] ; see Matter of Honeyford v. Luke , 186 A.D.3d 1049, 1052, 130 N.Y.S.3d 163 [4th Dept. 2020] ), and the father failed to make sufficient allegations here (see Matter of Fewell v. Koons , 87 A.D.3d 1405, 1405-1406, 930 N.Y.S.2d 518 [4th Dept. 2011] ; cf. generally Buck , 154 A.D.3d at 1135, 62 N.Y.S.3d 606 ).