Baum v. Baum

Appellate Division of the Supreme Court of New York

Baum v. Baum

120 A.D.2d 951, 502 N.Y.S.2d 845, 1986 N.Y. App. Div. LEXIS 57039

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 23, 1986

StatusPublished

Cited by1 cases

This text of 120 A.D.2d 951 (Baum v. Baum) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baum v. Baum, 120 A.D.2d 951, 502 N.Y.S.2d 845, 1986 N.Y. App. Div. LEXIS 57039 (N.Y. Ct. App. 1986).

Pincite

Opinion

Order unanimously reversed, on the law, without costs, and matter remitted to Supreme Court, Onondaga County, for further proceedings, in accordance with the following memorandum: The court denied the mother’s motion for change of custody of her six-year-old daughter without holding a hearing, relying on evidence at an earlier divorce trial terminated by an agreement and on conversations with the parties and their attorneys at an informal conference approximately one year later. Since neither of those proceedings is in the record before us, appellate review is impossible. The agreement, incorporated in the divorce decree, gave custody of the child to her 69-year-old father but provided that the child would live with the father’s adult son and daughter-in-law. It is undisputed that this arrangement is no longer available for the child. This is a significant change of circumstance requiring a hearing to determine the child’s best interests (see, Obey v Degling, 37 NY2d 768, 770; Bayne v Roberts, 112 AD2d 775; Bellinger v Bellinger, 109 AD2d 1104). The mother’s failure to make an explicit request for a hearing in her motion papers does not constitute a waiver of a hearing on the facts in this case (cf. Kuleszo v Kuleszo, 59 AD2d 1059, Iv denied 43 NY2d 647). (Appeal from order of Supreme Court, Onondaga County, Grow, J. — custody.) Present — Dillon, P. J., Callahan, Denman, Pine and Balio, JJ.

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Order unanimously reversed, on the law, without costs, and matter remitted to Supreme Court, Onondaga County, for further proceedings, in accordance with the following memorandum: The court denied the mother’s motion for change of custody of her six-year-old daughter without holding a hearing, relying on evidence at an earlier divorce trial terminated by an agreement and on conversations with the parties and their attorneys at an informal conference approximately one year later. Since neither of those proceedings is in the record before us, appellate review is impossible. The agreement, incorporated in the divorce decree, gave custody of the child to her 69-year-old father but provided that the child would live with the father’s adult son and daughter-in-law. It is undisputed that this arrangement is no longer available for the child. This is a significant change of circumstance requiring a hearing to determine the child’s best interests (see, Obey v Degling, 37 NY2d 768, 770; Bayne v Roberts, 112 AD2d 775; Bellinger v Bellinger, 109 AD2d 1104). The mother’s failure to make an explicit request for a hearing in her motion papers does not constitute a waiver of a hearing on the facts in this case (cf. Kuleszo v Kuleszo, 59 AD2d 1059, Iv denied 43 NY2d 647). (Appeal from order of Supreme Court, Onondaga County, Grow, J. — custody.) Present — Dillon, P. J., Callahan, Denman, Pine and Balio, JJ.

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Bluebook (online)

120 A.D.2d 951, 502 N.Y.S.2d 845, 1986 N.Y. App. Div. LEXIS 57039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baum-v-baum-nyappdiv-1986.

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