FEMIA v. FEMIA (2005)

Supreme Court, Appellate Division, Fourth Department, New York.

Sheila FEMIA, Plaintiff-Respondent, v. Steven FEMIA, Defendant-Appellant.

Decided: November 10, 2005

PRESENT: HURLBUTT, J.P., SCUDDER, GORSKI, SMITH, AND LAWTON, JJ.

Getnick Livingston Atkinson Gigliotti & Priore, LLP, Utica (Thomas L. Atkinson of Counsel), for Defendant-Appellant. Getman, Franchi & Applegate, LLP, Ilion (James J. Franchi of Counsel), for Plaintiff-Respondent.

Supreme Court erred in, inter alia, awarding temporary custody of the parties' children to plaintiff during the pendency of this divorce action without conducting an evidentiary hearing (see Van Etten v. Van Etten, 207 A.D.2d 992, 617 N.Y.S.2d 689; see generally Matter of Smith v. Brown, 272 A.D.2d 993, 708 N.Y.S.2d 676; Matter of Smith v. Patrowski, 226 A.D.2d 1073, 1073-1074, 642 N.Y.S.2d 122). Thus, we reverse the order and remit the matter to Supreme Court for a hearing and a new determination with findings of fact.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Herkimer County, for further proceedings.

MEMORANDUM:

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