IN RE: Janine Fitje (2011)

Submitted—June 21, 2011

DECISION & ORDER

In related custody and visitation proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Lynaugh, J.), dated October 19, 2010, which, without a hearing, dismissed her petition to modify the custody and visitation provisions of a judgment of divorce of the Supreme Court, Suffolk County (Kelly, J.), dated May 5, 2009, so as to award her sole custody of the subject children and to reduce the father's visitation with the subject children.

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

An application to modify the custody and visitation provisions of a judgment that are based upon a stipulation of the parties will not be granted absent a showing of a sufficient change in circumstances from the time of the stipulation, and that the modification would be in the best interests of the children (see Matter of Deochand v. Deochand, 80 AD3d 609;  Matter of Skeete v. Hamilton, 78 AD3d 1187, 1187–1188;  Spratt v. Fontana, 46 AD3d 670, 671).   A party seeking such a modification is not automatically entitled to a hearing on the application, but first must make an evidentiary showing sufficient to warrant a hearing (see Matter of Mazzola v. Lee, 76 AD3d 531;  Matter of Grassi v. Grassi, 28 AD3d 482;  Matter of Timson v. Timson, 5 AD3d 691, 692;  Matter of Carpenter v. Whitaker, 5 AD3d 681;  Matter of Blake v. Vilbig, 288 A.D.2d 470).   Here, the conclusory, unsubstantiated, and nonspecific allegations set forth in the mother's petition failed to meet this standard, and the Family Court properly dismissed the petition without a hearing (see Matter of Deochand v. Deochand, 80 AD3d 609;  Matter of Leichter–Kessler v. Kessler, 71 AD3d 1148;  Salvatore v. Salvatore, 68 AD3d 966, 967;  Matter of Blackstock v. Price, 51 AD3d 914;  Spratt v. Fontana, 46 AD3d 670;  Matter of Davis v. Venditto, 45 AD3d 837).

MASTRO, J.P., CHAMBERS, AUSTIN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court