Kehoe v. Kehoe

• Decision Date: 02 December 1996
• Citation: 651 N.Y.S.2d 324,234 A.D.2d 272
• Parties: Catherine KEHOE, Respondent, v. David KEHOE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 324

651 N.Y.S.2d 324

234 A.D.2d 272

Catherine KEHOE, Respondent, v. David KEHOE, Appellant.

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

Dec. 2, 1996.

Joyce Danziger, White Plains (Denby & Gammerman, P.C. [John M. Denby] of counsel), for appellant.

Margaret H. Tyre, P.C., Rye, for respondent.

Kathleen M. Hannon, Scarsdale, Law Guardian for the children.

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered December 12, 1995, which denied his motion for temporary custody of the infant children of the marriage.

ORDERED that the order is affirmed, with costs payable to the respondent.

The Supreme Court did not improvidently exercise its discretion in denying the defendant's motion for temporary custody of the parties' infant children. Although we have held that, as a general practice, a court should hold a hearing before determining custody (see, e.g., Biagi v. Biagi, 124 A.D.2d 770, 508 N.Y.S.2d 488), we have also recognized that in some cases such a hearing is not required (see, Asteinza v. Asteinza, 173 A.D.2d 515, 570 N.Y.S.2d 583). Under the facts of this case, the court was not required to conduct a hearing, and the parties would be best served by proceeding toward a speedy trial (see, Askinas v. Askinas, 155 A.D.2d 498, 547 N.Y.S.2d 360; Meltzer v. Meltzer, 38 A.D.2d 522, 326 N.Y.S.2d 831).

We have considered the defendant's remaining contentions and find them to be without merit.

ROSENBLATT, J.P., and O'BRIEN, RITTER and FRIEDMANN, JJ., concur.