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Knuth v. Westfall

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


April 30, 2010

IN THE MATTER OF JENNIFER R. KNUTH, APPELLANT,
v.
TROY J. WESTFALL, RESPONDENT.

Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), entered February 25, 2009 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.

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

As corrected through Wednesday, June 9, 2010

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum

Contrary to the contention of petitioner mother, Family Court properly granted respondent father's motion to dismiss the petition seeking to modify a prior custody order without conducting a hearing on the petition. "A hearing is not automatically required whenever a parent seeks modification of a custody order" (Matter of Wurmlinger v Freer, 256 AD2d 1069 [1998]; see David W. v Julia W., 158 AD2d 1, 6-7 [1990]). Where, as here, the petitioner fails to demonstrate a sufficient "change in circumstances..., there is no basis for modification and dismissal of [the] petition is warranted" (Matter of Reese v Jones, 249 AD2d 676, 677 [1998]; see Matter of Di Fiore v Scott, 2 AD3d 1417 [2003]).

The mother failed to preserve for our review her further contention that the court abused its discretion in dismissing the petition without conducting a Lincoln hearing inasmuch as she failed to request such a hearing (see Matter of Lopez v Robinson, 25 AD3d 1034, 1037 [2006]; Matter of Picot v Barrett, 8 AD3d 288, 289 [2004]). In any event, we reject that contention (see Matter of Charles M.O. v Heather S.O., 52 AD3d 1279 [2008]; Matter of Thompson v Thompson, 267 AD2d 516, 519 [1999]).

Present---Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.

20100430

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