Tacconi v. Tacconi

197 A.D.2d 929, 604 N.Y.S.2d 852, 1993 N.Y. App. Div. LEXIS 9426

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 1, 1993
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant contends that Supreme Court erred in granting plaintiff temporary custody of the infant issue of the marriage and granting defendant limited supervised visitation without a hearing. The issues of custody and visitation should be determined after a full evidentiary hearing rather than on the basis of recriminatory and controverted affidavits (see, e.g., De Pinto v De Pinto, 98 AD2d 985; Anstett v Wolcott, 94 AD2d 692; Kresnicka v Kresnicka, 48 AD2d 929; Bowman v Bowman, 19 AD2d 857). The custody and visitation portions of Supreme Court’s order are therefore reversed and those issues are remitted to Supreme Court for an immediate hearing. We also note that it was error for Supreme Court, in making its custody and visitation determinations, to consider the psychological report submitted by plaintiff without the consent of the parties (see, Kesseler v Kesseler, 10 NY2d 445; Matter of Brice v Mitchell, 184 AD2d 1008; Matter of Marciano v Marciano, 56 AD2d 735).

Supreme Court also erred in awarding plaintiff temporary child support and counsel fees without having a statement of net worth from either party or any other financial data (see, 22 NYCRR 202.16; see, e.g., Falcone v Falcone, 112 AD2d 796, 797). We therefore reverse that portion of the order and remit to Supreme Court for further consideration after submittal of the financial data. (Appeal from Order of Supreme Court, Monroe County, Curran, J.—Temporary Custody and Support.) Present—Callahan, J. P., Green, Lawton, Boomer and Boehm, JJ.