| Young v Young |
| 2008 NY Slip Op 02579 [49 AD3d 720] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Frances Young, Appellant, v Leigh Young,Respondent. |
—[*1] Bodnar & Milone LLP, White Plains, N.Y. (Pamela J. Jenson of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered November 9,2004, the plaintiff appeals (1), as limited by his brief, from so much of an order of the SupremeCourt, Westchester County (Scarpino, Jr., J.), entered June 22, 2007, as denied those branches ofhis motion which were to modify the parties' stipulation of settlement dated March 16, 2004,which was incorporated but not merged into the judgment of divorce, insofar as it concernedcustody of and visitation with the parties' child during the summer, and for an award of anattorney's fee, and (2) from a "supplemental order" of the same court dated July 9, 2007, whichdenied his request for the appointment of a Law Guardian.
Ordered that the appeal from the supplemental order is dismissed, as no appeal lies as ofright from an order that does not decide a motion made on notice (see CPLR 5701 [a][2]), and leave to appeal has not been granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The parties share joint custody of their son pursuant to a stipulation of settlementincorporated but not merged into their judgment of divorce. The plaintiff father moved, inter alia,to modify the stipulation insofar as it concerned custody and visitation during the summer, andfor [*2]an award of an attorney's fee in connection with themotion. We affirm the denial of such relief.
Where parents enter into an agreement regarding custody, it will not be set aside unless thereis a sufficient change in circumstances since the time of the stipulation and unless themodification of the custody arrangement is in the child's best interests (see Matter of Bauman v Abbate, 48AD3d 679 [2008]; Matter ofConforti v Conforti, 46 AD3d 877 [2007]). Here, the plaintiff failed to sustain hisburden of proof on those issues. Accordingly, the Supreme Court providently exercised itsdiscretion in denying those branches of his motion which were to modify the stipulation ofsettlement insofar as it concerned custody and visitation during the summer (see Spratt v Fontana, 46 AD3d670 [2007]).
The plaintiff's remaining contentions are without merit. Ritter, J.P., Santucci, Angiolillo andCarni, JJ., concur.