Biagi v. Biagi

• Decision Date: 24 November 1986
• Citation: 508 N.Y.S.2d 488,124 A.D.2d 770
• Parties: Eric BIAGI, Respondent, v. Laura BIAGI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 488

508 N.Y.S.2d 488

124 A.D.2d 770

Eric BIAGI, Respondent, v. Laura BIAGI, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 24, 1986.

Pachman & Oshrin, P.C., Commack (Howard E. Pachman, of counsel), for appellant.

Goldstein & Rubinton, P.C., Huntington (Peter D. Rubinton, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant wife appeals from so much of an order of the Supreme Court, Suffolk County (Abrams, J.), dated September 4, 1986, as (1) directed, pendente lite, that the plaintiff husband have custody of the parties' child from 10:00 A.M. on Sunday to 10:00 A.M. on Wednesday of each week, and that the defendant have custody during the remainder of each week and (2) allowed each party to have one hour of visitation with the child on those days when he or she is not entitled to legal custody.

ORDERED that the order is reversed insofar as appealed from, without costs or disbursements, and the case is remitted to the Supreme Court, Suffolk County, for a hearing on the issue of pendente lite custody, to be held forthwith. Custody shall be with the mother pending the hearing and new determination as to temporary custody.

Each party to this appeal seeks custody of the young child of the marriage during the pendency of this action for a divorce and ancillary relief. The Supreme Court, Suffolk County, without a hearing, issued an order directing the parties to share custody of the child during the action's pendency. As a general rule, it is error as a matter of law to make an order respecting custody based on controverted allegations without having had the benefit of a full hearing in order to resolve those factual issues which develop from conflicting affidavits (see, Obey v. Degling, 37 N.Y.2d 768, 769-770, 375 N.Y.S.2d 91, 337 N.E.2d 601; Bellinger v. Bellinger, 109 A.D.2d 1104, 487 N.Y.S.2d 232). In this case, the order under review does not constitute a final determination of the custody issue, but is merely an order made pendente lite. In some cases, a party claiming to be aggrieved by such an order, even if it was made without a hearing, will be required to seek an expeditious trial (see, Meltzer v. Meltzer, 38 A.D.2d 522, 326 N.Y.S.2d 831). Under the particular facts of this case, however, where the parties, in their affidavits, each accuse the other of being unfit to care for the now...