Matter of Saldana v. Lopresti

133 A.D.3d 669, 20 N.Y.S.3d 382

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 2015
• Docket: 2014-10381
• Status: Published

Opinion

Appeals from (1) an order of the Family Court, Orange County (Lori Currier Woods, J.), dated September 29, 2014, and (2) an order of that court dated October 20, 2014. The order dated September 29, 2014, insofar as appealed from, dismissed the father’s petition to modify a prior order of visitation so as to award him unsupervised visitation. The order dated October 20, 2014, denied the father’s motion, in effect, for leave to reargue his petition to modify the prior order of visitation.

Ordered that the appeal from the order dated October 20, 2014, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated September 29, 2014, is affirmed insofar as appealed from, without costs or disbursements.

“A court may modify an existing visitation order ‘upon a showing that there has been a subsequent change of circumstances and that modification is in the best interests of the child’ ” (Matter of Rosenblatt v Rosenblatt, 129 AD3d 1091, 1092 [2015], quoting Matter of Sinnott-Turner v Kolba, 60 AD3d 774, 775 [2009]; see Matter of Mack v Kass, 115 AD3d 748, 748-749 [2014]; Matter of Manzella v Milano, 82 AD3d 1242, 1242 [2011]; Matter of Arduino v Ayuso, 70 AD3d 682, 682 [2010]). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Vujanic v Petrovic, 125 AD3d 984 [2015]). “'Since any custody determination depends to a great extent upon the hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record’ ” (Matter of Mack v Kass, 115 AD3d at 749, quoting Matter of Skeete v Hamilton, 78 AD3d 1187, 1188 [2010]; see Matter of Vujanic v Petrovic, 125 AD3d at 985; Matter of Sinnott-Turner v Kolba, 60 AD3d 774, 775 [2009]).

Here, the Family Court’s determination that the father failed to show that there was a change of circumstances such that a modification of visitation was required to protect the best interests of the children is supported by a sound and substantial basis in the record. Thus, the court’s determination will not be disturbed (see Matter of Oakley v Cond-Arnold, 130 AD3d 737 [2015]; Matter of Vujanic v Petrovic, 125 AD3d 984 [2015]). Hall, J.P., Roman, Sgroi and Hinds-Radix, JJ., concur.