19 A.D.2d 676 | N.Y. App. Div. | 1963
Appeal from an order of a Special Term, Supreme Court, Montgomery County. Although the Special Term had continuing jurisdiction to modify the judgment of divorce in respect of custody and visitation of the child of the parties, some notice of either an application by the defendant or other adverse party or of an intention by the Special Term to change custody provision must be given to the plaintiff with an opportunity to meet that issue by adducing proof. (Alters v. Alters, 236 N. Y. 54; Hartenstein v. H'artenstein, 286 App. Div. 868; People-ex rel. Somniek v. Somniek, 1 A D 2d 1024.) We do not determine that the decision to allow defendant the right of visitation was not in the best interest of the child; we hold merely that plaintiff should have an opportunity to meet the issue. Order so far as appealed from reversed and the second and fifth decretal paragraphs stricken, without costs. Bergan, P. J., Coon, Gibson, Herlihv and Reynolds, JJ., concur.