Assini v. Assini, 2003-08896.

• Decision Date: 04 October 2004
• Docket Number: 2003-08897.,2003-08898.,2003-08896.
• Citation: 2004 NY Slip Op 07125,783 N.Y.S.2d 51,11 A.D.3d 417
• Parties: FREDERICK ASSINI, Respondent, v. LINDA ASSINI, Appellant.
• Court: New York Supreme Court — Appellate Division

11 A.D.3d 417

783 N.Y.S.2d 51

2004 NY Slip Op 07125

FREDERICK ASSINI, Respondent, v. LINDA ASSINI, Appellant.

2003-08896.

2003-08897.

2003-08898.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 4, 2004.

In a matrimonial action in which the parties were divorced by judgment dated September 17, 1996, the defendant appeals, as limited by her brief, from so much of (1) an order of the Supreme Court, Kings County (Ambrosio, J.), dated August 5, 2003, as, without a hearing, granted that branch of the plaintiff's motion which was, in effect, for temporary custody of the parties' child pending hearing and determination of his motion to modify the custody provisions of the parties' stipulation of settlement dated June 19, 1996, to award him sole custody of the child, (2) an order of the same court dated September 5, 2003, as denied those branches of her motion which were for interim counsel fees and for a change of custody, and granted the plaintiff's cross motion to the extent of allowing her to contact the child by telephone only once per week and (3) an order of the same court dated September 12, 2003, as, in effect, upon reargument, adhered to those portions of the order dated September 5, 2003, as denied that branch of her motion which was for a change of custody and granted the plaintiff's cross motion to the extent of allowing her to contact the child by telephone only once per week.

Ordered that the appeal from so much of the order dated September 5, 2003, as denied that branch of the defendant's motion which was for a change of custody and granted the plaintiff's cross motion to the extent of allowing her to contact the child by telephone only once per week is dismissed, without costs or disbursements, as those portions of the order were superseded by the order dated September 12, 2003; and it is further Ordered that the order dated August 5, 2003, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the order dated September 5, 2003, is reversed insofar as reviewed, without costs or disbursements, and that branch of the defendant's motion which was for interim counsel fees is granted to the extent of awarding her interim counsel fees in the sum of $5,000; and it is further,

Ordered that the order dated September 12, 2003, is affirmed insofar as appealed from, without costs or disbursements.

It is well settled that in adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167 [1982]), which requires an evaluation of the "totality of [the] circumstances" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]). Where the court possesses adequate relevant information to enable it to make an informed determination with respect to this issue, an evidentiary hearing is not necessary for a temporary custody determination (see Matter of Smith v Molody-Smith, 307 AD2d 364 [2003]; see also Matter of Hom v Zullo, 6 AD3d 536 [2004]; Matter of Vangas v Ladas, 259 AD2d 755 [1999]).

Here, contrary to the defendant's contention, the Supreme Court possessed the requisite information. The Supreme Court was presented with unrefuted and documented evidence of repeated complaints filed by the defendant with law enforcement authorities asserting numerous incidents of domestic violence, including emotional, verbal, and physical abuse of her by her live-in boyfriend. At least one of the reported incidents involved the parties' child and several led to the boyfriend's arrest in the presence of the child.

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