Gallagher v Dalton

Gallagher v Dalton 2007 NY Slip Op 10097 [46 AD3d 746] December 18, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Donna Gallagher, Respondent,
v
William Dalton, Appellant.

—[*1] Philip L. Kamaras, Brooklyn, N.Y., for appellant.

Marino & Bernstein, P.C., Oyster Bay, N.Y. (Anthony DeCarolis of counsel), for respondent.

In a matrimonial action in which the parties were divorced by judgment entered May 11, 2006, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Golia, J.), dated August 23, 2006, as, after a hearing, denied those branches of his motion which were to modify the visitation provisions set forth in a separation agreement dated December 8, 2003, which was incorporated into but not merged with the judgment of divorce, and to enjoin the plaintiff from, inter alia, taking the parties' child to visit her brother.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant failed to demonstrate that, since the parties entered into the separation agreement, there was a change of circumstances warranting a modification of that agreement's visitation provisions (see Messinger v Messinger, 16 AD3d 562, 563 [2005]; Giurco v Giurco, 281 AD2d 458, 459 [2001]). Accordingly, the court correctly denied that branch of the defendant's motion which was to modify those provisions.

The defendant's remaining contentions are without merit. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.