Barnes v. Barnes

234 A.D.2d 959, 651 N.Y.S.2d 776, 1996 N.Y. App. Div. LEXIS 13698

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1996
• Status: Published

Opinion

—Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting permanent custody of the parties’ children to plaintiff without a hearing, based on defendant’s violation of previous court orders. The best interests of children should be determined only after a full hearing (see, Matter of Dorie v Hyde, 227 AD2d 915; Matter of Blake v Blake, 106 AD2d 916), and "defiance of a court order is but one factor to be considered when determining the relative fitness of the parties and what custody arrangement is in the child’s best interests” (Wodka v Wodka, 168 AD2d 1000, 1001; see, Gagliardo v Gagliardo, 151 AD2d 720; see also, Daghir v Daghir, 56 NY2d 938).

We further conclude that the court erred in awarding child support to plaintiff without having net worth statements and other financial data (see, Tacconi v Tacconi, 197 AD2d 929; Falcone v Falcone, 112 AD2d 796, 797). We therefore remit the matter to Supreme Court for a hearing before a different Justice to determine custody and child support (see, Blake v Blake, supra, at 916-917). Pending the hearing, temporary custody of the children shall continue with plaintiff (see, Wodka v Wodka, supra, at 1001; Mosesku v Mosesku, 108 AD2d 795, 796). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Custody.) Present—Green, J. P., Pine, Lawton, Do-err and Boehm, JJ.