Del Sordo v. Maholsic

• Decision Date: 29 December 1993
• Parties: Matter of Vito DEL SORDO and Lillian Del Sordo, Appellants, v. Deanna MAHOLSIC, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 32

608 N.Y.S.2d 32

199 A.D.2d 1038

Matter of Vito DEL SORDO and Lillian Del Sordo, Appellants, v. Deanna MAHOLSIC, Respondent.

Supreme Court, Appellate Division Fourth Department.

Dec. 29, 1993.

Matusick, Spadafora & Verrastro by John Spadafora, Buffalo, for appellants.

Deanna Maholsic, Amherst, for respondent pro se.

Ward, Brenon, Schwendler & Di Vita, Williamsville, for law guardian.

Before GREEN, J.P., and BALIO, LAWTON, FALLON and DAVIS, JJ.

MEMORANDUM:

Family Court properly declined to vacate the order awarding custody of petitioners' great grandchild to the mother, respondent Maholsic. Petitioners and respondents agreed that Maholsic would have custody of Alicia and their agreement is entitled to legal effect (see, Senior v. Senior, 152 A.D.2d 784, 785, 543 N.Y.S.2d 564; Richman v. Richman, 104 A.D.2d 934, 935, 480 N.Y.S.2d 551). Further, by failing to request an evidentiary hearing at the time custody was transferred from petitioners to Maholsic, petitioners waived their right to challenge that custody award on the ground that no hearing was held (see, Kuleszo v. Kuleszo, 59 A.D.2d 1059, 399 N.Y.S.2d 801).

The orders dismissing the petition must be reversed, however, because the subsequent order transferring custody from Maholsic to the father, respondent Busalachi, was made without notice to petitioners. Respondents' divorce judgment expressly provides that "all future questions of custody * * * are to be on notice to [petitioners] Mr. and Mrs. DelSordo" (emphasis added). Petitioners, moreover, had custody of Alicia for 4 1/2 of her first six years and had been appointed the child's guardians by Surrogate's Court. Given those circumstances, petitioners should have been provided notice and an opportunity to be heard concerning the change of custody (see, Guma v. Guma, 132 A.D.2d 645, 518 N.Y.S.2d 19; Nutkiewicz v. Nutkiewicz, 123 A.D.2d 378, 506 N.Y.S.2d 456). Because the court summarily dismissed the petition, petitioners were also denied an opportunity to be heard regarding their claim to regain custody of the child.

Finally, we agree with petitioners that Family Court erred in directing a change of custody without notice to the Law Guardian. The appointment of the Law Guardian was not mandatory (see, Family Ct. Act § 249). Having exercised its discretion by appointing a Law Guardian, however, Family Court's failure to provide notice to the Law Guardian of the proposed change in custody constituted an abuse of discretion (s...