Mazzola v. Lee

• Decision Date: 03 August 2010
• Citation: 76 A.D.3d 531,906 N.Y.S.2d 83
• Parties: In the Matter of Frank MAZZOLA, appellant, v. Valerie R. LEE, respondent.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 83 76 A.D.3d 531 In the Matter of Frank MAZZOLA, appellant, v. Valerie R. LEE, respondent. Supreme Court, Appellate Division, Second Department, New York. Aug. 3, 2010.

Ira Bierman, Syosset, N.Y., for appellant.

Debra A. Byrnes, Centereach, N.Y., attorney for the children.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In related visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County (Lynaugh, J.), dated October 8, 2009, as, without a hearing, in effect, dismissed those branches of the petition which sought to add a therapeutic component to his visitation or, alternatively, to suspend his obligation to pay maintenance and child support.

ORDERED that the order is affirmed insofar as appealed from, with costs.

"Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" ( Matter of Leichter-Kessler v. Kessler, 71 A.D.3d 1148, 1148-1149, 897 N.Y.S.2d 639; see Matter of Balgley v. Cohen, 73 A.D.3d 1038, 900 N.Y.S.2d 659). "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 at 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). 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 father, in support of those branches of the petition which sought to add a therapeutic component to his visitation or, alternatively, to suspend his obligation to pay maintenance and child support, failed to allege that any change in circumstances occurred since the entry of a prior visitation order in or about April 2008. Rather, the father concedes that he is seeking to address an ongoing situation that has allegedly continued since the parties executed a stipulation of settlement in an underlying matrimonial action on April 11, 2005, or, as he describes it, "over the past five years." Moreover, the fatherdoes not allege conduct on the part of the mother that, if proven, would "rise to the level of 'deliberate frustration' or 'active interference' with the noncustodial parent's visitation rights" ( Ledgin v. Ledgin, 36 A.D.3d 669, 670, 828...