Opinion
CA 02-00029
May 3, 2002.
Appeal from an order of Supreme Court, Erie County (Marshall, J.), entered January 4, 2002, which, inter alia, granted defendant's application to change custody of the parties' children from plaintiff to defendant.
SIEGEL, KELLEHER KAHN, BUFFALO (KENNETH A. OLENA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (ROBERT R. VARIO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, SCUDDER, AND KEHOE, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, temporary custody of the children is awarded to defendant pending further order of Supreme Court, Erie County, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum:
Supreme Court erred in granting defendant's application to change custody from plaintiff to defendant without conducting a hearing to determine the best interests of the children ( see Matter of Smith v. Smith, 231 A.D.2d 896; Matter of Goodwin v. Goodwin, 193 A.D.2d 1138). Although the allegations in defendant's affidavit are sufficient to warrant a hearing ( cf. Matter of Chittick v. Farver, 279 A.D.2d 673, 675), there is no support in the record for defendant's contention that "the court ha[d] sufficient information to undertake a comprehensive independent review of the children's best interests" in the absence of a hearing ( id.; cf. Matter of Glenn v. Glenn, 262 A.D.2d 885, 886-887, lv denied in part and dismissed in part 94 N.Y.2d 782). Furthermore, we conclude that the failure of the court to appoint a law guardian for the children in this contested matter was an improvident exercise of discretion ( see Vecchiarelli v. Vecchiarelli, 238 A.D.2d 411, 413; Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 117; see also Smith, 231 A.D.2d at 896). We therefore reverse the order and remit the matter to Supreme Court, Erie County, for a hearing before a different justice. Because the children are currently enrolled in school, temporary custody of the children is awarded to defendant pending further order of Supreme Court, Erie County.