Sheila Femia v Steven Femia

Femia v Femia 2005 NY Slip Op 08465 [23 AD3d 1073] November 10, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Sheila Femia, Respondent, v Steven Femia, Appellant.

—[*1]Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered March 29, 2005. The order, inter alia, awarded temporary custody of the parties' children to plaintiff.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Herkimer County, for further proceedings in accordance with the following memorandum: Supreme Court erred in, inter alia, awarding temporary custody of the parties' children to plaintiff during the pendency of this divorce action without conducting an evidentiary hearing (see Van Etten v Van Etten, 207 AD2d 992 [1994]; see generally Matter of Smith v Brown, 272 AD2d 993 [2000]; Matter of Smith v Patrowski, 226 AD2d 1073, 1073-1074 [1996]). Thus, we reverse the order and remit the matter to Supreme Court for a hearing and a new determination with findings of fact. Present—Hurlbutt, J.P., Scudder, Gorski, Smith and Lawton, JJ.