Walberg v. Rudden

14 A.D.3d 572, 787 N.Y.S.2d 666, 2005 N.Y. App. Div. LEXIS 405

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2005
• Status: Published

Opinion

In a visitation proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Forman, J.), entered April 29, 2003, which, without a hearing, granted the father’s motion to dismiss the petition and dismissed the petition.

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

Contrary to the mother’s contention, the Family Court properly dismissed, without a hearing, her petition to modify an existing order which suspended her visitation with her child (see Matter of Blake v Vilbig, 288 AD2d 470 [2001]; Matter of Milhollen v Voelpel, 270 AD2d 422 [2000]). One who seeks to modify an existing order of visitation is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant a hearing (see Matter of Steinharter v Steinharter, 11 AD3d 471 [2004]; Matter of Timson v Timson, 5 AD3d 691 [2004]; Matter of Blake v Vilbig, supra; Matter of Milhollen v Voelpel, supra; Matter of Rosenberg v Rosenberg, 261 AD2d 623 [1999]). The mother’s allegations, even if true, would not give rise to finding of a change in circumstances warranting modification of the prior order.

Moreover, the Family Court was fully familiar with relevant background facts regarding the parties and the child from several past proceedings without the need for a further hearing (see Matter of Pignataro v Davis, 8 AD3d 487, 488 [2004]; Matter of Horn v Zullo, 6 AD3d 536 [2004]; Matter of Smith v Molody-Smith, 307 AD2d 364 [2003]).

The mother’s remaining contentions are without merit. Schmidt, J.P., Santucci, Luciano and Rivera, JJ., concur.