Cammarata-Charlesworth v. Charlesworth

120 A.D.2d 981, 503 N.Y.S.2d 465, 1986 N.Y. App. Div. LEXIS 57090

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1986
• Docket: Appeal No. 1
• Status: Published

Opinion

— Order unanimously reversed, on the law, without costs, and matter remitted to Supreme Court, Erie County for a hearing, in accordance with the following memorandum: Defendant appeals from two postdivorce orders which denied his application to suspend his support payments to two of his children on the ground that his visitation rights were being frustrated by the plaintiff and the oldest child. The orders also directed defendant to pay counsel fees and child support arrears, granted plaintiff’s application for a wage deduction order, directed defendant to sell the marital residence, and ordered the parties to agree mutually on the return of defendant’s personal property.

The issue of whether the noncustodial parent’s right to visitation is being frustrated should not have been decided without a hearing (see, Kaplan v Kaplan, 75 AD2d 885; Abraham v Abraham, 44 AD2d 675, 676; cf. Vigo v Vigo, 97 AD2d 463, 464).

The court also erred in awarding counsel fees without testimonial or other evidence tending to show the respective financial status of the parties (see, Biamby v Biamby, 114 AD2d 830; Woessner v Woessner, 108 AD2d 812; Ryan v Ryan, 92 AD2d 889; Entwistle v Entwistle, 92 AD2d 879, appeal dismissed 59 NY2d 966; Lewin v Lewin, 91 AD2d 649; Bazant v Bazant, 80 AD2d 310, 315).

Since the order entered August 30, 1985 enforces the order entered July 23, 1985 and all issues raised in the first motion are still in dispute, it is necessary that a hearing be held and findings made on all issues in both applications. (Appeal from order of Supreme Court, Erie County, Francis, J. — modify child support.) Present — Denman, J. P., Green, Pine, Balio and Schnepp, JJ.