Black v. Black

Appellate Division of the Supreme Court of New York

Black v. Black

84 A.D.2d 922, 447 N.Y.S.2d 54, 1981 N.Y. App. Div. LEXIS 16185

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

DecidedNovember 13, 1981

DocketAppeal No. 1

StatusPublished

Cited by3 cases

This text of 84 A.D.2d 922 (Black v. Black) 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

Black v. Black, 84 A.D.2d 922, 447 N.Y.S.2d 54, 1981 N.Y. App. Div. LEXIS 16185 (N.Y. Ct. App. 1981).

Pincite

Opinion

Order unanimously reversed, without costs, and matter remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: Kathleen Black appeals from an order of Family Court, Erie County, awarding child custody to her former husband. The record reveals that she was served with an order to show cause seeking to have custody of the infant child, which she had obtained by virtue of "a judgment of divorce, awarded to the petitioner husband. Kathleen appeared on the initial return date, together with her attorney, but failed to appear on any adjourned date. The court entered an order awarding custody to petitioner husband. While no appeal lies from an order entered upon default, the proper remedy being an application to the rendering court to open the default (CPLR 5511, 5015; Morse v Morse, 67 AD2d 750; Furci v Furci, 45 AD2d 1003), we do not view this determination to have been made on her default. In addition to her appearance with counsel a Law Guardian was appointed to protect the interest of the infant. The record is devoid of any hearing necessary to change custody. The court, therefore, erred in modifying custody without a hearing (Obey v Degling, 37 NY2d 768). (Appeal from order of Erie Family Court, Trost, J. — custody.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Schnepp, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order unanimously reversed, without costs, and matter remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: Kathleen Black appeals from an order of Family Court, Erie County, awarding child custody to her former husband. The record reveals that she was served with an order to show cause seeking to have custody of the infant child, which she had obtained by virtue of "a judgment of divorce, awarded to the petitioner husband. Kathleen appeared on the initial return date, together with her attorney, but failed to appear on any adjourned date. The court entered an order awarding custody to petitioner husband. While no appeal lies from an order entered upon default, the proper remedy being an application to the rendering court to open the default (CPLR 5511, 5015; Morse v Morse, 67 AD2d 750; Furci v Furci, 45 AD2d 1003), we do not view this determination to have been made on her default. In addition to her appearance with counsel a Law Guardian was appointed to protect the interest of the infant. The record is devoid of any hearing necessary to change custody. The court, therefore, erred in modifying custody without a hearing (Obey v Degling, 37 NY2d 768). (Appeal from order of Erie Family Court, Trost, J. — custody.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Schnepp, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

84 A.D.2d 922, 447 N.Y.S.2d 54, 1981 N.Y. App. Div. LEXIS 16185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-black-nyappdiv-1981.

Opinion

Related

Cite This Page — Counsel Stack