| Matter of DiCiacco v DiCiacco |
| 2011 NY Slip Op 08357 [89 AD3d 937] |
| November 15, 2011 |
| Appellate Division, Second Department |
| In the Matter of James M. DiCiacco, Respondent, v Pamela J.DiCiacco, Appellant. |
—[*1] Wolfson & Egitto, P.C., Poughkeepsie, N.Y. (Joseph A. Egitto of counsel), for respondent. John A. Pappalardo, White Plains, N.Y., Attorney for the Child.
In consolidated child custody and visitation proceedings pursuant to Family Court Act article 6, themother appeals, as limited by her brief, from so much of an order of the Family Court, DutchessCounty (Sammarco, J.), dated September 13, 2010, as granted the father's petition, in effect, to modifya prior order of custody and visitation of the same court entered November 18, 2008, upon astipulation of settlement, so as to, inter alia, award the father sole legal and physical custody of thesubject child and, thereupon, terminated the father's child support obligation effective September 1,2010.
Ordered that the order dated September 13, 2010, is reversed insofar as appealed from, on thelaw, with costs, the father's petition is denied, and the order of custody and visitation enteredNovember 18, 2008, is reinstated.
"When parties enter into stipulations resolving custody issues, those stipulations 'will not bemodified unless there is a sufficient change in circumstances since the time of the stipulation, andunless modification of the custody arrangement is in the best interests of the children' " (Mathie v Mathie, 65 AD3d 527, 529[2009], quoting Matter of Said v Said,61 AD3d 879, 880 [2009] [emphasis added]). In this case, the Family Court improperlyconsidered testimony regarding events alleged to have occurred prior to the parties' stipulation ofsettlement (see Matter of Guerra vBalistreri, 49 AD3d 646, 647 [2008]; Matter of Risman v Linke, 235 AD2d 861,861-862 [1997]). Even if this testimony is considered, the father did not demonstrate that there was asufficient change in circumstances such that modification of the custody and visitation arrangement wasin the best interests of the subject child. Thus, the Family Court erred in granting his petition, in effect, tomodify the order of custody and visitation entered November 18, 2008, which was based upon theparties' stipulation of settlement, and, thereupon, terminating his child support obligation, effectiveSeptember 1, 2010, on that basis.
The mother's remaining contention need not be addressed in light of our determination. Florio, J.P.,Hall, Austin and Cohen, JJ., concur.