Liverani v. Liverani

Feb 4, 2005
Versions:15 A.D.3d 858
788 N.Y.S.2d 874
2005 N.Y. App. Div. LEXIS 1252

Appeal from an order of the Supreme Court, Erie County (Robert E. Whelan, J.), entered December 2, 2003. The order, insofar as appealed from, denied the application of plaintiff to modify a stipulation incorporated but not merged in the judgment of divorce by granting her permission to relocate with the parties’ two children.

It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Supreme Court erred in summarily denying the application of plaintiff seeking permission to relocate with the parties’ children to Ohio. Generally, “[d]eterminations affecting custody and visitation should be made following a full evidentiary hearing” (Matter of Naughton-General v Naughton, 242 AD2d 937, 938 [1997]). The submissions of plaintiff in support of the application “established the need for a hearing on the issue whether [her] relocation is in the best interests of the child[ren]” (Matter of Stevens v Stevens, 286 AD2d 890, 890 [2001], citing Matter of Tropea v Tropea, 87 NY2d 727, 738-739 [1996]).

Present—Green, J.P., Scudder, Martoche, Smith and Lawton, JJ.