| Arcabascio v Arcabascio |
| 2008 NY Slip Op 01485 [48 AD3d 606] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Gina Marie Arcabascio, Respondent, v AnthonyArcabascio, Appellant. |
—[*1] William L. Ostar, Rockville Centre, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment entered December22, 1995, the defendant appeals from an order of the Supreme Court, Nassau County (Ross, J.),dated May 29, 2007, which denied his motion, inter alia, to hold the plaintiff in contempt,reimburse him for alleged overpayments of spousal maintenance, transfer custody of the parties'younger child to him, and terminate his child support obligations.
Ordered that the order is affirmed, with costs.
The defendant's contention that he demonstrated his entitlement to reimbursement for allegedoverpayments of spousal maintenance is without merit. While the parties' stipulation ofsettlement authorized the cessation of maintenance payments in the event that the plaintiffengaged in full-time employment for one year, the defendant produced no evidence establishingthat she did so. Moreover, even if the plaintiff had obtained such employment, there is no supportfor the defendant's assertion that she affirmatively concealed that employment from him. Absentsuch concealment, the defendant's recoupment of support payments is barred (see Redgrave v Redgrave, 25 AD3d973 [2006]; Fox v Fox, 306 AD2d 583[2003]; Vigliotti v Vigliotti, 260AD2d 470 [1999]).
The defendant's contention regarding the custody of the parties' younger child is likewisewithout merit. "A parent who seeks a change in custody is not automatically entitled to a hearingbut must make some evidentiary showing sufficient to warrant one" (Green v Green, 43 AD3d 867, 867[2007]; see Matter of Vasquez-Williamsv Williams, 32 AD3d 859 [2006]). Given the parties' prior agreement as [*2]to custody, the defendant was required to present evidence that therelevant circumstances had changed and that a modification of the custodial arrangement wouldbe in the child's best interests (seeMatter of Joseph F. v Patricia F., 32 AD3d 938 [2006]; Smoczkiewicz v Smoczkiewicz, 2AD3d 705 [2003]; Matter of Neu v Neu, 303 AD2d 509 [2003]). The conclusoryassertions set forth in the defendant's motion papers were insufficient to warrant a hearingregarding his request to change custody (see e.g. Matter of Sergei P. v Sofia M., 44 AD3d 490 [2007]; DiVittorio v DiVittorio, 36 AD3d848 [2007]; McNally vMcNally, 28 AD3d 526 [2006]). Similarly, the defendant failed to present adequateevidence to warrant a hearing on his request to terminate child support (see Mahato v Mahato, 16 AD3d386 [2005]).
The defendant's remaining contentions are without merit. Mastro, J.P., Santucci, Balkin andDickerson, JJ., concur.