Naclerio v. Naclerio

• Decision Date: 07 October 2015
• Parties: In the Matter of Andrew NACLERIO, appellant, v. Lucille NACLERIO, respondent.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 679
17 N.Y.S.3d 487
2015 N.Y. Slip Op. 07274

In the Matter of Andrew NACLERIO, appellant,
v.
Lucille NACLERIO, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 7, 2015.

[17 N.Y.S.3d 488]

Merchant Law Group LLP, White Plains, N.Y. (Daniel DeMaria of counsel), for appellant.

Ellen B. Holtzman, Nanuet, N.Y. (Meryl R. Neuren of counsel), for respondent.

Karen M. Jansen, White Plains, N.Y., attorney for the children.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.

Appeal from an order of the Family Court, Rockland County (William P. Warren, J.), entered August 15, 2014. The order, without a hearing, granted the mother's motion to dismiss the father's petition, inter alia, to modify the visitation provisions of a stipulation of settlement dated May 5, 2011, which was incorporated but not merged in a judgment of divorce dated April 24, 2012, so as to award him regular visitation with the parties' children, and enjoined the father from commencing further proceedings with respect to custody or visitation without prior court approval.

ORDERED that the order is affirmed, without costs or disbursements.

A party seeking the modification of an existing court-sanctioned visitation arrangement has the burden of demonstrating that circumstances have changed such that modification is required to ensure the continued best interests of the children ( see Matter of O'Connor v. Klotz, 124 A.D.3d 666, 666, 1 N.Y.S.3d 350; Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 1148–1149, 897 N.Y.S.2d 639). Moreover, a hearing is not necessary when the court already possesses adequate relevant information to make an informed and provident determination as to the children's best interests ( see Matter of Attallah N., 65 A.D.3d 1047, 1048, 884 N.Y.S.2d 870; Matter of Perez v. Sepulveda, 51 A.D.3d 673, 673, 857 N.Y.S.2d 659; Matter of Hom v. Zullo, 6 A.D.3d 536, 536, 775 N.Y.S.2d 66).

Here, the Family Court was fully familiar with the relevant background facts because it had long been involved with the various court proceedings involving the parties, which it described in the order appealed from. The court's granting of the mother's motion to dismiss the father's petition without a hearing was a provident exercise of discretion under all the circumstances of this case ( see Matter of Attallah N., 65 A.D.3d at 1048, 884 N.Y.S.2d 870; Matter of Mennuti v. Berry, 59 A.D.3d 625, 625, 874 N.Y.S.2d 502).

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