| Matter of Mazzola v Lee |
| 2010 NY Slip Op 06314 [76 AD3d 531] |
| August 3, 2010 |
| Appellate Division, Second Department |
| In the Matter of Frank Mazzola, Appellant, v Valerie R.Lee, Respondent. |
—[*1] Debra A. Byrnes, Centereach, N.Y., attorney for the children.
In related visitation proceedings 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 October 8, 2009, as, without a hearing, in effect, dismissed those branches of thepetition which sought to add a therapeutic component to his visitation or, alternatively, tosuspend his obligation to pay maintenance and child support.
Ordered that the order is affirmed insofar as appealed from, with costs.
"Modification of an existing custody or visitation arrangement is permissible only upon ashowing that there has been a change in circumstances such that a modification is necessary toensure the continued best interests and welfare of the child" (Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1148-1149[2010]; see Matter of Balgley vCohen, 73 AD3d 1038 [2010]). "A party seeking a change in visitation or custody is notautomatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant ahearing" (Matter of Leichter-Kessler v Kessler, 71 AD3d at 1149; see Matter of Grant v Hunter, 64AD3d 779 [2009]; Matter of Riedelv Riedel, 61 AD3d 979 [2009]). Moreover, "a hearing will not be necessary where thecourt possesses adequate relevant information to enable it to make an informed and providentdetermination as to the child's best interest" (Matter of Hom v Zullo, 6 AD3d 536, 536 [2004]; see Matter of Perez v Sepulveda, 51AD3d 673 [2008]; Matter of Smith v Molody-Smith, 307 AD2d 364 [2003]).
Here, the father, in support of those branches of the petition which sought to add atherapeutic component to his visitation or, alternatively, to suspend his obligation to paymaintenance and child support, failed to allege that any change in circumstances occurred sincethe entry of a prior visitation order in or about April 2008. Rather, the father concedes that he isseeking to address an ongoing situation that has allegedly continued since the parties executed astipulation of settlement in an underlying matrimonial action on April 11, 2005, or, as hedescribes it, "over the past five years." Moreover, the father does not allege conduct on the partof the mother that, if proven, would "rise to the level of 'deliberate frustration' or 'activeinterference' with the noncustodial parent's visitation rights" (Ledgin v Ledgin, 36 AD3d 669, 670 [2007], quoting Weinreichv Weinreich, 184 AD2d 505, 506 [1992]; see Matter of Smith v Graves, 305 AD2d419 [2003]; Matter of Clum v [*2]Seksinsky, 263 AD2d507 [1999]; Matter of Beal v Beal, 244 AD2d 550 [1997]) such as to warrant suspensionof his maintenance or child support obligation.
In addition, the April 2008 visitation order was entered on consent approximately one yearprior to the service of the petition that is the subject of the instant appeal, that order disposed ofcontentions made by the parties that are identical to those made in connection with the instantpetition, and the same Family Court judge presided over the proceedings involving the instantpetition, the father's 2008 visitation request, and a support proceeding commenced by the motheragainst the father. Accordingly, the Family Court properly found that, even without a hearing, itpossessed "adequate relevant information to enable it to make an informed and providentdetermination as to the child's best interest" (Matter of Hom v Zullo, 6 AD3d at 536; see Matter of Perez v Sepulveda, 51AD3d 673 [2008]; Matter of Smith v Molody-Smith, 307 AD2d 364 [2003]), as wellas with respect to the allegations of alienation. Skelos, J.P., Hall, Roman and Sgroi, JJ., concur.