| Matter of Rodriguez v Hangartner |
| 2009 NY Slip Op 01224 [59 AD3d 630] |
| February 17, 2009 |
| Appellate Division, Second Department |
| In the Matter of Roberto Rodriguez, Appellant, v DianeAdele Hangartner, Respondent. |
—[*1] John G. Griffin, East Setauket, N.Y., for respondent. Darelle C. Cairo, Riverhead, N.Y., attorney for the child.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Suffolk County (Lynaugh,J.), dated May 28, 2008, as dismissed, without a hearing, his petition to enforce and modify thevisitation provisions of the parties' judgment of divorce entered December 22, 2006.
Ordered that the order is modified, on the law, by deleting the provision thereof dismissingthat branch of the petition which was to enforce the visitation provisions of the judgment ofdivorce; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements, that branch of the petition is reinstated, and the matter is remitted to the FamilyCourt, Suffolk County, for further proceedings thereon.
To modify an order of visitation, there must be a material change of circumstances(see Family Ct Act § 467 [b]; Nash v Yablon-Nash, 16 AD3d 471 [2005]; Matter of King vKing, 266 AD2d 546 [1999]). A parent seeking a change in visitation is not automaticallyentitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Matter of Gold v Gold, 53 AD3d485 [2008]; Matter of Potente vWasilewski, 51 AD3d 675 [2008]; Matter of Simpson v Ptaszynska, 41 AD3d 607 [2007]). The fatherfailed to [*2]make an evidentiary showing of changedcircumstances sufficient to warrant a hearing. Accordingly, the Family Court properly dismissedthat branch of the petition which was to modify the visitation provisions of the judgment ofdivorce.
However, the petition also sought enforcement of the current visitation provisions of thejudgment of divorce. The mother conceded that she did not permit holiday visitation inaccordance with the terms of the judgment of divorce. Instead, she relied upon an allegedunderstanding between the parties to limit such visitation. Accordingly, the Family Court erredin dismissing that branch of the petition which was to enforce the visitation provisions of thejudgment of divorce (see Matter ofDanvers v Clarke, 29 AD3d 578 [2006]). Spolzino, J.P., Santucci, Balkin andChambers, JJ., concur.