Opinion
February 3, 1969
In an action for separation in which a judgment was entered on June 2, 1967, granting plaintiff husband a separation, exclusive possession of the marital home, and custody of the parties' two daughters, then of the respective ages of about 9 and 7 years, with liberal visitation rights to defendant (see Sheil v. Sheil, 29 A.D.2d 950), plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated July 17, 1968 and made after a hearing, as denied his motion to modify the judgment of separation by providing that, when defendant exercises her rights of visitation, she shall do so outside the presence of the corespondent in the separation action. Order reversed, insofar as appealed from, on the law and the facts, without costs, and motion granted, without costs. In our opinion, the denial of the motion was an improvident exercise of discretion ( Leopold v. Leopold, 25 A.D.2d 754; cf. Johnson v. Johnson, 47 Misc.2d 805, affd. 25 A.D.2d 672; Matter of Hahn v. Falce, 56 Misc.2d 427; Seldin v. Seldin, 55 Misc.2d 187). Our determination does not preclude defendant from moving for a change in custody or rights of visitation after plaintiff and defendant are divorced and defendant and her paramour are married, or upon any other material change in surroundings. Brennan, Acting P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.