Goncalves v. Goncalves

Decision Date17 April 2013
Citation2013 N.Y. Slip Op. 02539,105 A.D.3d 901,963 N.Y.S.2d 686
PartiesPatricia GONCALVES, respondent, v. John GONCALVES, appellant.
CourtNew York Supreme Court — Appellate Division

105 A.D.3d 901
963 N.Y.S.2d 686
2013 N.Y. Slip Op. 02539

Patricia GONCALVES, respondent,
v.
John GONCALVES, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 17, 2013.



Christian L. Goetz, Huntington, N.Y., for appellant.

Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Rosalia Baiamonte of counsel), for respondent.


Tomasina Mastroianni, Westbury, N.Y., attorney for the children.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SYLVIA HINDS–RADIX, JJ.

[105 A.D.3d 901]In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated May 10, 2012, as, without a hearing, granted the plaintiff's motion to modify the defendant's visitation schedule with the children and for certain pendente lite relief.

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

[105 A.D.3d 902]Generally, visitation should be determined after a full evidentiary hearing

[963 N.Y.S.2d 687]

to determine the best interests of the child ( see Matter of Burgess v. Burgess, 99 A.D.3d 797, 798, 951 N.Y.S.2d 893), but a hearing may not be necessary when a court already has adequate relevant information permitting it to make that determination ( see Matter of Cardona v. Vantassel, 96 A.D.3d 1052, 1053, 946 N.Y.S.2d 876;Rosenberg v. Rosenberg, 60 A.D.3d 658, 658, 874 N.Y.S.2d 237;cf. Matter of Burgess v. Burgess, 99 A.D.3d at 798, 951 N.Y.S.2d 893). Here, the Supreme Court possessed adequate relevant information to make its determination, in which it adopted the temporary visitation schedule proposed by the attorney for the children, without holding a hearing ( see Rosenberg v. Rosenberg, 60 A.D.3d at 658, 874 N.Y.S.2d 237).

Furthermore, Domestic Relations Law § 236B(5–a) sets forth the substantive and procedural requirements for an award of temporary maintenance, addressing both the amount and the duration of the temporary award ( see Woodford v. Woodford, 100 A.D.3d 875, 876–877, 955 N.Y.S.2d 355;Khaira v. Khaira, 93 A.D.3d 194, 197–198, 938 N.Y.S.2d 513). First, the subdivision contains a formula the court must use to determine a “guideline amount of temporary maintenance” (Domestic Relations Law § 236B[5–a][b][6], [5–a][c] ). When the income of the payor spouse does not exceed the “income cap” (Domestic Relations Law § 236B[5–a][b][5] ), the initial calculation of the amount is straightforward ( see Domestic...

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  • Michael V. v. Eva S.
    • United States
    • New York Supreme Court
    • August 22, 2016
    ...a marital residence" (Woodford v. Woodford, 100 AD3d 875, 877, 955 N.Y.S.2d 355 [2 Dept.,2012] ; see generally Goncalves v. Goncalves, 105 AD3d 901, 963 N.Y.S.2d 686 [2 Dept.,2013] ). The Court in Woodford went on to find that "it is reasonable and logical' to view the formulas set forth in......
  • Davydova v. Sasonov
    • United States
    • New York Supreme Court — Appellate Division
    • September 25, 2013
    ...parties' reported income in order to determine the presumptively correct amount of temporary maintenance ( see Goncalves v. Goncalves, 105 A.D.3d 901, 902, 963 N.Y.S.2d 686;Woodford v. Woodford, 100 A.D.3d 875, 876–877, 955 N.Y.S.2d 355). “In any decision made pursuant to [Domestic Relation......
  • Michael V. v. Southern
    • United States
    • New York Supreme Court
    • August 22, 2016
    ...a marital residence" (Woodford v. Woodford, 100 AD3d 875, 877, 955 N.Y.S.2d 355 [2 Dept.,2012]; see generally Goncalves v. Goncalves, 105 AD3d 901, 963 N.Y.S.2d 686 [2 Dept.,2013]). The Court in Woodford went on to find that "it is reasonable and logical' to view the formulas set forth in D......
  • Faulkner v. City of Yonkers
    • United States
    • New York Supreme Court — Appellate Division
    • April 17, 2013
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