Hartenstein v. Hartenstein

Appellate Division of the Supreme Court of New York

Hartenstein v. Hartenstein

286 A.D. 868, 142 N.Y.S.2d 31, 1955 N.Y. App. Div. LEXIS 4389

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

DecidedJune 20, 1955

StatusPublished

Cited by1 cases

This text of 286 A.D. 868 (Hartenstein v. Hartenstein) 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

Hartenstein v. Hartenstein, 286 A.D. 868, 142 N.Y.S.2d 31, 1955 N.Y. App. Div. LEXIS 4389 (N.Y. Ct. App. 1955).

Pincite

Opinion

In a separation action judgment was entered which, among other things, contained provisions dismissing appellant’s complaint, awarding custody of the child of the parties to her, and granting rights of visitation to respondent from 1:00 p.m. to 4:00 p.m. each Sunday and from 5:00 p.m. to 7:00 p.m. each Wednesday. An amended judgment, entered subsequently, did not change said provisions. Thereafter, respondent moved to punish appellant for her failure to comply with the aforesaid provisions pertaining to visitation. Said motion was referred to an official referee to hear and determine. His order, from which this appeal is taken, among other things grants the motion to punish for contempt, amends the aforesaid provision relating to visitation so as to provide that appellant shall deliver the child to the home of a certain nurse each Sunday at 1:00 p.m. for visitation, respondent to return the child to appellant’s residence by 6:00 p.m. ; directs appellant to deliver the child accordingly and provides for her punishment upon ex parte application in case of failure to comply. Order modified by striking from the third ordering paragraph thereof the word “ herein ” and by adding in lieu thereof the words “on the 17th day of May, 1954”, by striking therefrom everything that follows the word “parties” and by adding in lieu thereof the words “ as therein directed ”, and by striking from said order the fourth and fifth ordering paragraphs. As so modified, order affirmed, with $10 costs and disbursements to the appellant. The matter of amending the visitation provisions was not referred to the Referee. In any event, respondent having made no application therefor, he was not entitled to have eliminated the Wednesday visitation of two hours and to have such time added to the Sunday visitation. (Civ. Prac. Act, § 1170-a; Allers v. Alters, 236 N. Y. 54.) Nolan, P. J., Wenzel, Schmidt, Murphy and Ughetta, JJ., concur.

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In a separation action judgment was entered which, among other things, contained provisions dismissing appellant’s complaint, awarding custody of the child of the parties to her, and granting rights of visitation to respondent from 1:00 p.m. to 4:00 p.m. each Sunday and from 5:00 p.m. to 7:00 p.m. each Wednesday. An amended judgment, entered subsequently, did not change said provisions. Thereafter, respondent moved to punish appellant for her failure to comply with the aforesaid provisions pertaining to visitation. Said motion was referred to an official referee to hear and determine. His order, from which this appeal is taken, among other things grants the motion to punish for contempt, amends the aforesaid provision relating to visitation so as to provide that appellant shall deliver the child to the home of a certain nurse each Sunday at 1:00 p.m. for visitation, respondent to return the child to appellant’s residence by 6:00 p.m. ; directs appellant to deliver the child accordingly and provides for her punishment upon ex parte application in case of failure to comply. Order modified by striking from the third ordering paragraph thereof the word “ herein ” and by adding in lieu thereof the words “on the 17th day of May, 1954”, by striking therefrom everything that follows the word “parties” and by adding in lieu thereof the words “ as therein directed ”, and by striking from said order the fourth and fifth ordering paragraphs. As so modified, order affirmed, with $10 costs and disbursements to the appellant. The matter of amending the visitation provisions was not referred to the Referee. In any event, respondent having made no application therefor, he was not entitled to have eliminated the Wednesday visitation of two hours and to have such time added to the Sunday visitation. (Civ. Prac. Act, § 1170-a; Allers v. Alters, 236 N. Y. 54.) Nolan, P. J., Wenzel, Schmidt, Murphy and Ughetta, JJ., concur.

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Bluebook (online)

286 A.D. 868, 142 N.Y.S.2d 31, 1955 N.Y. App. Div. LEXIS 4389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartenstein-v-hartenstein-nyappdiv-1955.

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