Pignataro v. Davis

• Decision Date: 14 June 2004
• Docket Number: 2003-09390.
• Citation: 8 A.D.3d 487,2004 NY Slip Op 05250,778 N.Y.S.2d 528
• Parties: In the Matter of LISA PIGNATARO, Appellant, v. GLEN DAVIS, Respondent.
• Court: New York Supreme Court — Appellate Division

8 A.D.3d 487

778 N.Y.S.2d 528

2004 NY Slip Op 05250

In the Matter of LISA PIGNATARO, Appellant, v. GLEN DAVIS, Respondent.

2003-09390.

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 14, 2004.

In a proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Lawrence, J.), dated September 19, 2003, as dismissed a petition dated February 4, 2003, alleging that the father violated certain provisions of a custody and visitation order of the same court dated May 14, 2002, a petition dated April 18, 2003, alleging additional violations

of the order dated May 14, 2002, and, in effect, a petition dated July 25, 2003, for a modification of custody, and prohibited the mother from filing any further petitions or motions regarding custody or visitation without the prior written permission of the Family Court.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The parties both filed petitions for custody of the subject child. By order of the Family Court dated May 14, 2002, after a more than two-year trial, the father was awarded custody of the child with visitation to the mother.

Shortly thereafter, the mother filed the three petitions relevant to this appeal. The first two alleged various violations of the order dated May 14, 2002. The third petition, in effect, amplified and particularized the violations alleged in the prior two petitions, and sought a modification of custody. All three petitions demonstrated the mother's continuing hostility toward the father, and her propensity for commencing litigation over minor infractions. After examining the parties, the Family Court dismissed the petitions and prohibited the mother from filing any further petitions or motions regarding custody or visitation without its prior written permission. We affirm.

Modification of an existing custody 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 (see Eschbach v Eschbach, 56 NY2d 167 [1982]; Matter of Dow v Dow, 306 AD2d 529, 530 [2003]). A full evidentiary hearing is not automatically necessary whenever a parent seeks modification of a custody order (see Matter of Jackson v Gangi, 277 AD2d 383, 384 [2000]; Matter of Wurmlinger v Freer, 256 AD2d 1069 [1998]). In the petition dated July 25, 2003, for a modification of the custody order the mother failed to allege a change in circumstances, and, therefore, no hearing was warranted (see Matter of Jackson v Gangi, supra). Moreover, the Family Court recently presided over the parties' custody trial,...