Opinion
May 13, 1991
Appeal from the Supreme Court, Richmond County (Kuffner, J.).
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision; and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that the defendant wife is awarded one bill of costs.
Although a prompt hearing is ordinarily required for the purpose of resolving issues of fact based on controverted allegations arising in a pendente lite custody application (see, Robert C.R. v Victoria R., 143 A.D.2d 262; Biagi v Biagi, 124 A.D.2d 770), upon the instant record, the Supreme Court properly exercised its discretion in awarding temporary custody of the two infant children of the parties to the wife without a hearing. The defendant wife noted in her motion papers that the Family Court, after a hearing and a clinical and psychological evaluation of the husband, had previously entered a permanent order of protection directing, inter alia, the husband to stay away from the wife, the marital residence and the children except for visitation. The Family Court also set up a visitation schedule. The wife further noted that the husband subsequently broke into the marital residence with the knowledge that he was violating the order of protection, and, as a result, he was placed on probation by the Family Court. The husband did not contest those assertions by the wife. Moreover, there were no factual allegations to indicate that the wife was an unfit parent. Since it does not appear that this is an overly complex case, the husband should be able to proceed to an early trial (see, Tweed v Tweed, 147 A.D.2d 556; Matter of Long v Scism, 143 A.D.2d 95; Meltzer v Meltzer, 38 A.D.2d 522).
Furthermore, we find that the Supreme Court did not improvidently exercise its discretion in determining pendente lite child support based upon the standards enunciated in Domestic Relations Law § 240 (see, Domestic Relations Law § 236 Dom. Rel. [B] [7]; Rizzo v Rizzo, 163 A.D.2d 15). Although the consideration of the factors set forth in the Child Support Standards Act is not mandatory on a pendente lite motion, it was within the court's discretion to use those standards based upon the record before it (see, Rizzo v Rizzo, supra). Harwood, J.P., Balletta, Rosenblatt and O'Brien, JJ., concur.