SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
February 20, 1969
PAUL C. CHIRICO, APPELLANT,
JOANNE CHIRICO, RESPONDENT
Appeal from order of Erie Special Term granting defendant's application to open default in divorce action.
Del Vecchio, J. P., Marsh, Witmer, Gabrielli and Moule, JJ.
Memorandum: On April 29, 1966 the parties executed a separation agreement which provided, among other things, that the wife have custody of their then three-year-old daughter with rights of visitation to the husband. On February 7, 1967 the husband commenced an action for divorce. The verified complaint did not ask for custody of the child but only for the right of reasonable visitation. The wife's attorney filed a notice of retainer and appearance waiving notice of the date, time and place of trial. On March 29 the husband was granted a default judgment of divorce. The court, without knowledge of the separation agreement or adequate proof from which an informed determination could be made on the question, awarded custody to the husband. On April 17 the wife moved to modify the judgment of divorce, only insofar as it awarded custody to the husband. Proceedings were thereafter had before three different Judges, none of whom conducted a full hearing on the question of custody, which finally resulted in an order vacating and setting aside the interlocutory judgment of divorce. Thereafter the husband amended his complaint to ask for custody of the child. In a habeas corpus proceeding temporary custody of the child was awarded to the wife pending trial upon the amended complaint. The husband appealed from both orders. We are affirming the award of temporary custody. (See People ex rel. Chirico v. Chirico, 31 A.D.2d 888
, decided concurrently herewith). Upon the argument of this appeal the attorneys agreed that the judgment of divorce, insofar as it terminated the marital relation of the parties, should not have been disturbed and that a hearing should be had solely on the question of custody of the child. In these circumstances, the matter is remitted to Special Term of Supreme Court, Erie County, for an immediate full hearing, following which an order may be granted modifying the divorce judgment by adding appropriate provisions for permanent custody and support of the child.
Order unanimously modified in accordance with the Memorandum herein, and as so modified affirmed, without costs.
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