GREEN v. GREEN (2007)

In an action for a divorce and ancillary relief, the plaintiff appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), dated August 2, 2006, as, upon reargument, adhered to the determination in an order dated March 29, 2006, denying that branch of her motion which was to award her sole custody of the parties' children and (2) from so much of a judgment of the same court entered August 24, 2006, as awarded the parties joint legal custody of the subject children.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from;  and it is further,

ORDERED that the defendant is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a][1] ).

 Where the parents have entered into an agreement concerning custody that may have been in the best interests of the children when made, the agreement will not be set aside unless there is a sufficient change in circumstances since the time of the agreement, and the modification of the custody agreement is in the best interests of the children (see Pambianchi v. Goldberg, 35 A.D.3d 688, 689, 827 N.Y.S.2d 225;  Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 706, 770 N.Y.S.2d 101;  Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 805, 691 N.Y.S.2d 681).   A parent who seeks a change in custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant one (see Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 706, 770 N.Y.S.2d 101;  Teuschler v. Teuschler, 242 A.D.2d 289, 290, 660 N.Y.S.2d 744).   Here, the plaintiff failed to make a sufficient evidentiary showing to warrant a hearing (see McNally v. McNally, 28 A.D.3d 526, 527, 816 N.Y.S.2d 98;  Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 770 N.Y.S.2d 101, supra ).