WEISMAN v. WEISMAN (2005)

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated September 8, 2004, which denied his motion, inter alia, for sole custody of the parties' two children and granted the defendant's cross motion for an award of an attorney's fee.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on the motion and cross motion.

The Supreme Court erred in declining to conduct a hearing on the plaintiff's motion, inter alia, for sole custody of the parties' two children and the defendant's cross motion for an award of an attorney's fee.   Because the parties presented conflicting affidavits regarding whether the defendant consumed alcohol in violation of their stipulation of settlement, a hearing was required so that the court could make a determination as to custody that serves the best interests of the children (see Metzger v. Metzger, 240 A.D.2d 642, 659 N.Y.S.2d 300;  Robert C.R. v. Victoria R., 143 A.D.2d 262, 263-264, 532 N.Y.S.2d 176;  Biagi v. Biagi, 124 A.D.2d 770, 508 N.Y.S.2d 488;  cf. Webster v. Webster, 163 A.D.2d 178, 558 N.Y.S.2d 40).   The defendant's cross motion for an award of an attorney's fee incurred in opposing the plaintiff's motion should also be considered upon remittitur (see Cole v. Cole, 283 A.D.2d 602, 724 N.Y.S.2d 911;  Matter of Salvati v. Salvati, 242 A.D.2d 538, 662 N.Y.S.2d 130;  see also Rosenzweig v. Gomez, 250 A.D.2d 664, 672 N.Y.S.2d 907).

The defendant's remaining contentions are without merit.