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Riedel v. Riedel

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


April 28, 2009

IN THE MATTER OF LEE ANN RIEDEL, APPELLANT,
v.
PAUL RIEDEL, RESPONDENT.

In a proceeding, in effect, pursuant to Domestic Relations Law articles 5 and 5-A to modify the visitation provisions of a judgment of divorce entered in the State of Florida, the mother appeals from an order of the Supreme Court, Suffolk County (McNulty, J.), dated March 17, 2008, which, without a hearing, denied her petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL and PLUMMER E. LOTT, JJ.

(Index No. 13886/06)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

Contrary to the mother's contention, the Supreme Court properly denied, without a hearing, her petition to modify the visitation provisions of the Florida judgment of divorce. "Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" (Matter of Molinari v Tuthill, 59 AD3d 722; see Matter of Shockome v Shockome, 53 AD3d 618, 619). A person seeking a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Matter of Rodriguez v Hangartner, 59 AD3d 630; Matter of Mennuti v Berry, 59 AD3d 625; Matter of Hermanowski v Hermanowski, 57 AD3d 777, 778). Here, the mother failed to make an evidentiary showing of a subsequent change in circumstances sufficient to warrant a hearing.

The mother's remaining contentions are without merit.

RIVERA, J.P., BALKIN, LEVENTHAL and LOTT, JJ., concur.

20090428

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