Elman v. Elman

75 A.D.2d 882, 428 N.Y.S.2d 1010, 1980 N.Y. App. Div. LEXIS 11519

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1980
• Status: Published

Opinion

In a matrimonial action, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated June 5, 1979, as (1) granted plaintiff increased visitation rights and awarded her a counsel fee, and (2) denied defendant’s cross motion for a change of venue. Order reversed insofar as appealed from, without costs or disbursements, by (1) striking the provision granting unsupervised visitation to the plaintiif and substituting therefor a provision referring the matter to Special Term, Orange County, for a hearing on the issue of unsupervised visitation; (2) striking the provision granting plaintiff counsel fees; and (3) striking the provision which denied the motion for a change of venue and substituting therefor a provision granting the motion and directing that the venue of the action be changed to Orange County. On this record, it is apparent that the plaintiffs right to unsupervised visitation should have been the subject of a hearing and that the hearing we now direct should be held in Orange County where the defendant and the child reside. As to counsel fees, the absence of a motion for such relief and a record to support such a grant, mandates reversal. Damiani, J. P., Lazer, Gibbons and Martuscello, JJ., concur.