Ryan v. Ryan

92 A.D.2d 889, 459 N.Y.S.2d 863, 1983 N.Y. App. Div. LEXIS 17277

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1983
• Status: Published

Opinion

— In a matrimonial action, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Imperato, J.), dated June 8, 1981, as (1) denied his motion for (a) a modification of alimony and child support, (b) joint or full custody of the parties’ child and (c) increased visitation, and (2) granted plaintiff wife’s motion for counsel fees in the sum of $750. Order modified, on the law and the facts (1) to provide that (a) defendant husband shall pay to plaintiff wife the sum of $120 per week alimony and $50 per week child support, and (b) defendant husband shall be granted visitation rights two out of every three weekends from 6:00 p.m. Friday until 6:00 p.m. Sunday, and (2) by deleting therefrom the fifth decretal paragraph awarding counsel fees to plaintiff wife. As so modified, order affirmed, insofar as appealed from, without costs or disbursements, and matter remitted to Special Term for further proceedings in accordance herewith. Under all the facts and circumstances of this case, including the tax consequences of the award, we have modified the award of alimony and child support as indicated (see Marshall v Marshall, 48 AD2d 759). We also deem it more appropriate to grant the defendant husband increased visitation privileges by court order, rather than leave his visitation privileges to plaintiff wife’s discretion. Moreover, in the absence of a stipulation regarding the same, Special Term erred in deciding plaintiff wife’s contested application for counsel fees without testimonial or other trial evidence tending to show the respective financial status of the parties (see Entwistle v Entwistle, 92 AD2d 879; Sadofsky v Sadofsky, 78 AD2d 520; Fomenko v Fomenko, 50 AD2d 712, opp dsmd 38 NY2d 999). We therefore remit the matter to Special Term for a hearing and determination on that issue alone. Gibbons, J. P., O’Connor, Brown and Boyers, JJ., concur.