| Matter of Molinari v Tuthill |
| 2009 NY Slip Op 01483 [59 AD3d 722] |
| February 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Philip Molinari, Appellant, v DawnTuthill, Respondent. |
—[*1] Elizabeth A. Pfister, Center Moriches, N.Y., attorney for the child.
In two related visitation proceedings pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County(Lynaugh, J.), dated October 24, 2007, as, in effect, granted those branches of the mother'smotions which were to dismiss the petitions and to require that he seek permission of the courtbefore filing future custody or visitation applications, and denied his request for assignedcounsel.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The Family Court properly, in effect, granted that branch of the mother's motion which wasto dismiss, on the ground of res judicata, those of the father's claims which had been asserted inhis prior petition alleging violations of the visitation order, which petition was dismissed withprejudice by order dated April 11, 2007 (see Xiao Yang Chen v Fischer, 6 NY3d 94, 100 [2005]; O'Connell v Corcoran, 1 NY3d179, 184-185 [2003]; O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Thefather's new claims that he was denied visitation also were correctly dismissed since he was notentitled to visitation on the days at issue.
The Family Court also properly dismissed the modification petition. Modification of anexisting custody or visitation arrangement is permissible only upon a showing that there has beena change in circumstances such that a modification is necessary to ensure the continued bestinterests and welfare of the child (see Family Ct Act § 652 [a]; Matter of Manfredo v Manfredo, 53AD3d 498, [*2]499 [2008]; Matter of Shehata v Shehata, 31 AD3d773, 773-774 [2006]). The only change the petition alleged was that the mother had movedthe child's residence a distance of less than 10 miles. Pursuant to the parties' existingarrangement, however, she was allowed to move with the child within a 30-mile radius.Accordingly, the petition failed to allege a change in circumstances sufficient to warrantmodification.
In addition, the Family Court properly denied the father's request for assigned counsel, as hedoes not fall within any of the classes of persons entitled to the assignment of counsel under theprovisions of Family Court Act § 262 (cf. Matter of Ward v Jones, 303 AD2d 844[2003]).
Finally, while public policy generally mandates free access to the courts (see Board ofEduc. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local1889, AFT AFL-CIO, 38 NY2d 397, 404 [1975]; Matter of Pignataro v Davis, 8 AD3d 487, 489 [2004];Sassower v Signorelli, 99 AD2d 358, 359 [1984]), a party may forfeit that right if she orhe abuses the judicial process by engaging in meritless litigation motivated by spite or ill will(see Matter of Simpson v Ptaszynska,41 AD3d 607, 608 [2007]; Matter of Pignataro v Davis, 8 AD3d at 489;Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [1996]; Sassower v Signorelli,99 AD2d at 359). Here, the Family Court providently exercised its discretion in granting thatbranch of the mother's motion which was to require that the father seek permission of the courtbefore filing future custody or visitation applications. Spolzino, J.P., Santucci, Balkin andChambers, JJ., concur.