YOUNG v. YOUNG (2008)

In a matrimonial action in which the parties were divorced by judgment entered November 9, 2004, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Scarpino, Jr., J.), entered June 22, 2007, as denied those branches of his motion which were to modify of the parties' stipulation of settlement dated March 16, 2004, which was incorporated but not merged into the judgment of divorce, insofar as it concerned custody of and visitation with the parties' child during the summer, and for an award of an attorney's fee, and (2) from a “supplemental order” of the same court dated July 9, 2007, which denied his request for the appointment of a Law Guardian.

ORDERED that the appeal from the supplemental order is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a][2] ), and leave to appeal has not been granted (see CPLR 5701 [c] );  and it is further,

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

ORDERED that one bill of costs is awarded to the defendant.

The parties share joint custody of their son pursuant to a stipulation of settlement incorporated but not merged into their judgment of divorce.   The plaintiff father moved, inter alia, to modify the stipulation insofar as it concerned custody and visitation during the summer, and for an award of an attorney's fee in connection with the motion.   We affirm the denial of such relief.

 Where parents enter into an agreement regarding custody, it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody arrangement is in the child's best interests (see Matter of Bauman v. Abbate, 48 A.D.3d 679, 850 N.Y.S.2d 921;  Matter of Conforti v. Conforti, 46 A.D.3d 877, 848 N.Y.S.2d 359).   Here, the plaintiff failed to sustain his burden of proof on those issues.   Accordingly, the Supreme Court providently exercised its discretion in denying those branches of his motion which were to modify the stipulation of settlement insofar as it concerned custody and visitation during the summer (see Spratt v. Fontana, 46 A.D.3d 670, 847 N.Y.S.2d 220).

The plaintiff's remaining contentions are without merit.