Opinion
2012-05-30
Christine G. SIRABELLA, appellant, v. Anthony J. SIRABELLA, respondent.
Law Offices of Neil H. Greenberg & Associates, P.C., Westbury, N.Y. (Justin M. Reilly of counsel), for appellant. Wallace, Witty, Frampton & Veltry, P.C., Brentwood, N.Y. (David J. Hove of counsel), for respondent.
Law Offices of Neil H. Greenberg & Associates, P.C., Westbury, N.Y. (Justin M. Reilly of counsel), for appellant. Wallace, Witty, Frampton & Veltry, P.C., Brentwood, N.Y. (David J. Hove of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Maron, J.), dated November 1, 2011, as denied, without a hearing, those branches of her motion which were to modify the custody provisions set forth in a stipulation of settlement dated February 13, 2007, so as to award her sole legal and physical custody of the parties' children and for the appointment of an attorney for the children.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Contrary to the mother's contention, the Supreme Court properly denied, without a hearing, that branch of her motion which sought to modify the custody provisions set forth in a stipulation of settlement dated February 13, 2007, so as to award her sole legal and physical custody of the parties' children. “ ‘A modification of an existing custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child's best interests' ” (Matter of Dorsa v. Dorsa, 90 A.D.3d 1046, 1046, 935 N.Y.S.2d 343, quoting Matter of Nava v. Kinsler, 85 A.D.3d 1186, 1186, 926 N.Y.S.2d 310). “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 Grant v. Hunter, 64 A.D.3d 779, 884 N.Y.S.2d 763;Matter of Riedel v. Riedel, 61 A.D.3d 979, 876 N.Y.S.2d 907). Contrary to the mother's contention, the Supreme Court properly determined that the conclusory and unsubstantiated allegations set forth in her motion papers were insufficient to justify a hearing on the issue of whether awarding her sole custody would be in the best interests of the children ( see Matter of Mazurkiewicz v. Pindor–Mazurkiewicz, 80 A.D.3d 615, 616, 914 N.Y.S.2d 657;Matter of Grant v. Hunter, 64 A.D.3d at 779, 884 N.Y.S.2d 763;Matter of Blackstock v. Price, 51 A.D.3d 914, 915, 858 N.Y.S.2d 733;Arcabascio v. Arcabascio, 48 A.D.3d 606, 607, 852 N.Y.S.2d 352;Nash v. Yablon–Nash, 16 A.D.3d 471, 471, 790 N.Y.S.2d 718;Shapira v. Shapira, 283 A.D.2d 477, 478, 724 N.Y.S.2d 646;Itchkow v. Itchkow, 275 A.D.2d 442, 442, 713 N.Y.S.2d 135).
The mother's remaining contention has been rendered academic in light of our determination.