Knuth v. Westfall

72 A.D.3d 1642, 899 N.Y.S.2d 693

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 2010
• Status: Published

Opinion

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.

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.