Majeed v. Majeed

194 A.D.3d 916

144 N.Y.S.3d 365 (Mem)

Ibrahim MAJEED, respondent,

v.Liliahn MAJEED, appellant.

2020–05978

Index No. 50800/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 26, 2021

May 19, 2021

Cassin & Cassin LLP, New York, N.Y. (Daniel B. Nottes of counsel), for appellant.

Berkman Bottger Newman & Schein LLP, New York, N.Y. (John Teufel of counsel), for respondent.

Cheryl S. Solomon, Brooklyn, NY, attorney for the child.

ROBERT J. MILLER, J.P., HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a matrimonial action, the defendant appeals from an order of the Supreme Court, Kings County (Eric I. Prus, J.), dated July 10, 2020. The order, insofar as appealed from, denied, without a hearing, that branch of the defendant's motion which was to modify the parties' agreement and stipulation of settlement dated August 1, 2019, so as to limit the plaintiff's parental access with the parties' child to alternate weekends.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In this matrimonial action, the defendant moved, inter alia, to modify the parties' agreement and stipulation of settlement dated August 1, 2019 (hereinafter the agreement), so as to limit the plaintiff's parental access with the parties' child to alternate weekends. The Supreme Court denied that branch of the defendant's motion upon determining that she had failed to set forth a sufficient change in circumstances to warrant a hearing. The defendant appeals.

" ‘In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child’ " ( Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 629, 872 N.Y.S.2d 141, quoting Matter of Fallarino v. Ayala, 41 A.D.3d 714, 714, 838 N.Y.S.2d 176 ; see Matter of Werner v. Mazzenga, 174 A.D.3d 727, 728, 107 N.Y.S.3d 425 ). "A party seeking a change in [parental access] or custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing" ( Matter of Stones v. VanDenberge, 167 A.D.3d 909, 909, 90 N.Y.S.3d 244 [internal quotation marks omitted]; see Matter of Werner v. Mazzenga, 174 A.D.3d at 728–729, 107 N.Y.S.3d 425 ; Matter of Gurewich v. Gurewich, 58 A.D.3d at 629, 872 N.Y.S.2d 141 ). Here, the defendant failed to make an evidentiary showing of a change in circumstances between the time that ...