July 17, 2013
Jennifer A. Stock, respondent,
Thomas H. Stock, appellant. Index No. 16909/11
Harry Raptakis, Mineola, N.Y. (Victor A. Carr of counsel), for appellant.
Fallon and Fallon, LLP, Sayville, N.Y. (David P. Fallon of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, SYLVIA HINDS-RADIX, JJ.
DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Kent, J.), dated March 23, 2012, as denied that branch of his motion which was to change temporary residential custody of the two subject children from the plaintiff to him, and granted that branch of the plaintiff's cross motion which was for a pendente lite award of child support to the extent of awarding her the sum of $709.91 biweekly.
ORDERED that the order is affirmed insofar as appealed from, with costs.
"[W]here parents enter into an agreement concerning custody it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children'" (Smoczkiewicz v Smoczkiewicz, 2 A.D.3d 705, 706, quoting Matter of Gaudette v Gaudette, 262 A.D.2d 804, 805). "[P]riority in custody disputes should usually be given to the parent who was first awarded custody by the court or to the parent who obtained custody by voluntary agreement" (Matter of Krebsbach v Gallagher, 181 A.D.2d 363, 365; see Matter of Ross v Ross, 96 A.D.3d 856, 857). "A noncustodial parent seeking a change of custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing" (Matter of McNally v McNally, 28 A.D.3d 526, 527; see Smoczkiewicz v Smoczkiewicz, 2 A.D.3d at 706). Here, the defendant failed to meet his threshold burden of proffering sufficient evidence to warrant a hearing on that branch of his motion which was for a modification of the custody arrangement specified in the parties' stipulation of settlement (see Connor v Connor, 104 A.D.3d 638, 639; Smoczkiewicz v Smoczkiewicz, 2 A.D.3d at 706).
"Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires" (Levakis v Levakis, 7 A.D.3d 678, 678; see Renga v Renga, 86 A.D.3d 634, 635). "Any perceived inequities in pendente lite support can best be remedied by a speedy trial, at which the parties' financial circumstances can be fully explored" (Conyea v Conyea, 81 A.D.3d 869, 870; see Renga v Renga, 86 A.D.3d at 635). Here, the defendant failed to meet his burden of demonstrating exigent circumstances warranting a modification of the pendente lite child support award (see Conyea v Conyea, 81 A.D.3d at 870).
The defendant's remaining contention cannot be determined on this record.
ANGIOLILLO, J.P., DICKERSON, SGROI and HINDS-RADIX, JJ., concur.