Cammarata-Charlesworth v. Charlesworth, CAMMARATA-CHARLESWORT

• Decision Date: 23 May 1986
• Docket Number: CAMMARATA-CHARLESWORT,R,No. 1,1
• Citation: 503 N.Y.S.2d 465,120 A.D.2d 981
• Parties: Dianeespondent, v. Robert D. CHARLESWORTH, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 465

503 N.Y.S.2d 465

120 A.D.2d 981

Diane CAMMARATA-CHARLESWORTH, Respondent, v. Robert D. CHARLESWORTH, Appellant. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

May 23, 1986.

Harvey Rogers, Buffalo, for appellant.

Ange, Birzon, Gordon, Rosa & Zakia, P.C. by Grace Ange, Buffalo, for respondent.

Before DENMAN, J.P., and GREEN, PINE, BALIO, and SCHNEPP, JJ.

MEMORANDUM:

Defendant appeals from two post divorce orders which denied his application to suspend his support payments to two of his children on the ground that his visitation rights were being frustrated by the plaintiff and the oldest child. The orders also directed defendant to pay counsel fees and child support arrears, granted plaintiff's application for a wage deduction order, directed defendant to sell the marital residence, and ordered the parties to agree on the return of defendant's personal property.

The issue of whether the noncustodial parent's right to visitation is being frustrated should not have been decided without a hearing (see Kaplan v. Kaplan, 75 A.D.2d 885, 428 N.Y.S.2d 289; Abraham v. Abraham, 44 A.D.2d 675, 676, 353 N.Y.S.2d 794; cf. Vigo v. Vigo, 97 A.D.2d 463, 464, 467 N.Y.S.2d 436).

The court also erred in awarding counsel fees without testimonial or other evidence tending to show the respective financial status of the parties (see Biamby v. Biamby, 114 A.D.2d 830, 494 N.Y.S.2d 741; Woessner v. Woessner, 108 A.D.2d 812, 485 N.Y.S.2d 325; Ryan v. Ryan, 92 A.D.2d 889, 459 N.Y.S.2d 863; Entwistle v. Entwistle, 92 A.D.2d 879, 459 N.Y.S.2d 862, appeal dismissed 59 N.Y.2d 966, 466 N.Y.S.2d 320, 453 N.E.2d 549; Lewin v. Lewin, 91 A.D.2d 649, 457 N.Y.S.2d 92; Bazant v. Bazant, 80 A.D.2d 310, 315, 439 N.Y.S.2d 521).

Since the order entered August 30, 1985 enforces the order entered July 23, 1985 and all issues raised in the first motion are still in dispute, it is necessary that a hearing be held and findings made on all issues in both applications.

Order unanimously reversed, on the law, without costs, and matter remitted to Supreme Court, Erie County for a hearing.