Lenczycki
v.
Alexander

Appellate Division of the Supreme Court of New York, Second DepartmentNov 14, 1994
209 A.D.2d 480 (N.Y. App. Div. 1994)
209 A.D.2d 480619 N.Y.S.2d 56

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November 14, 1994

Appeal from the Supreme Court, Westchester County (Burrows, J.).


Ordered that the order which denied the plaintiff's motion for custody and awarded the defendant counsel fees is modified, on the law, by deleting the provision thereof which granted the defendant's cross motion which was for an award of counsel fees; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a hearing on that branch of the cross motion which was for an award of counsel fees; and it is further,

Ordered that the order which denied the plaintiff's motion for a modification of the visitation agreement is reversed, as a matter of discretion, without costs or disbursements, the motion is granted, and the plaintiff is granted Friday overnight visitation on those weekends when he has visitation with the child; and it is further,

Ordered that the order staying the plaintiff from taking the son to psychiatric counseling without the defendant's consent is affirmed, without costs or disbursements.

The plaintiff and the defendant were married in 1979 and, one year later, had a son. In 1986, this divorce action was commenced and, after a two week trial during which extensive testimony was elicited with respect to the issue of custody, the Supreme Court, Westchester County, inter alia, dissolved the marriage and awarded custody of the infant child to the defendant and granted visitation rights to the plaintiff. This judgment awarding custody to the defendant was affirmed (see, Lenczycki v Lenczycki, 152 A.D.2d 621). We find that the plaintiff has not provided any evidence that there was a change in circumstances which would warrant a new hearing on the issue of custody.

However, the evidence presented showed that the infant child had been visiting overnight with the plaintiff on the Friday before each alternate weekend which he spends with the plaintiff. It is in the child's best interest that the child's overnight Friday visits with his father continue so that he may participate in weekend trips and family visits, and avoid the necessity of a dual commute between the plaintiff and defendant's new home on both Friday night and again on Saturday morning.

Although the Supreme Court has the discretionary power to award counsel fees, the exercise of this power must be supported by sufficient facts upon which a proper determination as to the amount claimed or amount being awarded can be based (see, Osborn v. Osborn, 144 A.D.2d 350, 352). An award of counsel fees on the basis of affirmations alone was improper in the absence of a stipulation agreeing to that procedure (see, Silverman v Silverman, 193 A.D.2d 595). Accordingly, the matter is remitted to the Supreme Court, Westchester County, for a hearing solely on this issue.

We have examined the plaintiff's remaining contention and find it to be without merit. Pizzuto, J.P., Santucci, Hart and Goldstein, JJ., concur.