Elten v. Elten

175 A.D.2d 234, 573 N.Y.S.2d 910, 1991 N.Y. App. Div. LEXIS 10997

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 22, 1991
• Status: Published

Opinion

— In an action for a divorce and ancillary relief, the defendant appeals from so much of a judgment of divorce of the Supreme Court, Suffolk County (Doyle, J.), entered December 19, 1989, as permitted him Tuesday visitation with his children only during the weeks in which he did not have weekend visitation.

Ordered that the judgment is reversed insofar as appealed from, on the facts, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing and determination as to whether the parties reached an agreement with respect to the appellant’s visitation with his children on Tuesday nights, and, if they did reach such an agreement, whether their stipulation was intended to give the appellant visitation every Tuesday night or just on Tuesday nights during those weeks in which he does not have weekend visitation.

It is unclear from the record on appeal and from the rather ambiguously-worded stipulation, whether the parties reached an agreement on the appellant’s Tuesday night visitation, and, if an agreement was reached, the precise terms of the agreement. The matter is therefore remitted to the Supreme Court, Suffolk County, for a hearing in which the parties’ agreement, if any, is to be ascertained. If no agreement was reached, there must be a hearing to determine visitation in accordance with the best interests of the child. Thompson, J. P., Kunzeman, Eiber, Rosenblatt and Ritter, JJ., concur.