Anne Lewin, Respondent, v. Scott Frances, Appellant

Anne Lewin, Respondent, v Scott Frances, Appellant. [704 NYS2d 468] [MAJORITY] —Order, Supreme Court, New York County (Jacqueline Silbermann, J.), entered on or about December 14, 1998, denying defendant’s motion for modification of provisions of the stipulation of settlement and ensuing judgment governing child visitation and granting plaintiffs cross motion for counsel fees, unanimously modified, on the law and the facts, to deny plaintiffs cross motion and remand the matter for a hearing on the issue of counsel fees, and otherwise affirmed, without costs. Plaintiff and defendant entered into a detailed stipulation of settlement affording defendant liberal visitation with his son. To obtain modification of this agreement, it was incumbent on defendant to show that there had been some material change in circumstances warranting such modification (see, Family Ct Act § 467 [b]; Matter of Brocher v Brocher, 213 AD2d 544, lv denied 86 NY2d 701). The changed circumstances cited by defendant in support of his motion did not suffice as grounds for the requested modification since they were changes that could have been anticipated and provided for in the stipulation of settlement or in the ensuing divorce judgment. We modify only to the extent of vacating the grant of plaintiffs motion for counsel fees and remanding for an evidentiary hearing as to the merits of plaintiffs claim for such fees (see, Petek v Petek, 239 AD2d 327, 329). Concur — Williams, J. P., Tom, Saxe and Friedman, JJ.