Opinion
November 13, 1981
Appeal from the Erie Family Court, Trost, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Doerr and Schnepp, JJ.
Order unanimously reversed, without costs, and matter remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: Kathleen Black appeals from an order of Family Court, Erie County, awarding child custody to her former husband. The record reveals that she was served with an order to show cause seeking to have custody of the infant child, which she had obtained by virtue of a judgment of divorce, awarded to the petitioner husband. Kathleen appeared on the initial return date, together with her attorney, but failed to appear on any adjourned date. The court entered an order awarding custody to petitioner husband. While no appeal lies from an order entered upon default, the proper remedy being an application to the rendering court to open the default (CPLR 5511, 5015; Morse v. Morse, 67 A.D.2d 750; Furci v. Furci, 45 A.D.2d 1003), we do not view this determination to have been made on her default. In addition to her appearance with counsel a Law Guardian was appointed to protect the interest of the infant. The record is devoid of any hearing necessary to change custody. The court, therefore, erred in modifying custody without a hearing (Obey v. Degling, 37 N.Y.2d 768).