DiVittorio v. DiVittorio

• Decision Date: 07 May 2001
• Docket Number: No. 2,No. 1,1,2
• Parties: (A.D. 2 Dept. 2001) Theresa DiVittorio, respondent, v Joseph DiVittorio, appellant. (Action) Joseph DiVittorio, appellant, v Theresa DiVittorio, respondent. (Action) 2000-01735, 2000-05271 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 863

723 N.Y.S.2d 863 (A.D. 2 Dept. 2001)

Theresa DiVittorio, respondent, v Joseph DiVittorio, appellant.

(Action No. 1)

Joseph DiVittorio, appellant, v Theresa DiVittorio, respondent.

(Action No. 2)

2000-01735, 2000-05271

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

May 7, 2001

Ackerman Raphan & Sultzer, Oceanside, N.Y. (Michael B. Raphan of counsel), for appellant in both actions.

Tabat Cohen Blum & Kramer, West Islip, N.Y. (Robert A. Cohen of counsel), for respondent in both actions.

In a matrimonial action in which the parties were divorced by judgment dated November 16, 1998 (Action No. 1), and a related action, inter alia, to set aside the custody provision of a stipulation of settlement, dated May 18, 1998, which was incorporated but not merged into the judgment of divorce (Action No. 2), the father appeals (1) from an order of the Supreme Court, Suffolk County (Lifson, J.), dated January 26, 2000, entered in Action No. 1 which, inter alia, denied his motion to modify the stipulation of settlement regarding custody of the parties' child and granted, without a hearing, the mother's cross motion for an award of an attorney's fee in the sum of $1,850, and (2), as limited by his brief, from so much of an order of the same court, dated May 16, 2000, entered in both actions, as (a) granted the mother's motion to dismiss the complaint in Action No. 2, (b) upon, in effect, granting reargument, adhered to the prior determination in the order dated January 26, 2000, entered in Action No. 1, awarding the mother an attorney's fee, and (c) granted the mother's cross motion in Action No. 1 for an additional attorney's fee in the sum of $1,600.

ORDERED that the appeal from so much of the order dated January 26, 2000, as granted the mother's cross motion for an award of an attorney's fee is dismissed, as that portion of the order was superseded by so much of the order dated May 16, 2000, as was made upon reargument; and it is further,

ORDERED that the order dated January 26, 2000, is affirmed insofar as reviewed, and it is further,

ORDERED that the order dated May 16, 2000, is affirmed insofar as appealed from; and it is further,

ORDERED that the mother is awarded two bills of costs.

Contrary to the father's contention, the Supreme Court did not err in denying his motion to change custody of the parties' child without conducting a hearing. A parent who seeks a change of custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see, Matter of Coutsoukis v Samora, 265 A.D.2d 482; Teuschler v Teuschler, 242 A.D.2d 289, 290; Matter of Miller v Lee, 225 A.D.2d 778, 779; Matter of Ann C. v Debra S., 221 A.D.2d 338). Here, the Supreme Court providently exercised its discretion in finding that the father failed to meet his threshold burden of proffering sufficient evidence to warrant a hearing to determine whether, under the totality of the circumstances, a change of custody would be in the best interests of the child (see, Hom v Hom, 270 A.D.2d 391, 392; Matter of Fairbanks v Diehl, 268 A.D.2d 867; Matter of Rosenberg v Rosenberg, 261 A.D.2d 623; Teuschler v Teuschler, 242 A.D.2d 289).

The Supreme Court also properly dismissed Action No. 2, which sought, inter alia, to set aside the parties' stipulation of settlement relating to custody on the ground that it was a product of fraud by the mother. Taking all of the allegations of the complaint to be true and...