People ex rel. Putziger v. Putziger

In a habeas corpus proceeding initiated by a father to enforce his visitation rights with respect to three minor children in the custody of the mother, the mother appeals from an order of the Supreme Court, Westchester County, entered August 19, 1963, which sustained the writ, defined the father’s rights of visitation and granted him such rights subject to his making monthly payments of $666.66 to the mother for support, and subject to other stated conditions. Order reversed on the law, without costs, and proceeding remitted to the Special Term for the purpose of: (1) holding a hearing at which testimony under oath should be taken with respect to all the issues of fact raised by the petition and the return; and (2) making a determination de novo of all the issues of fact and law on the basis of the proof adduced upon such hearing. No questions of fact have been considered. While an agreement may have been reached between counsel in the chambers of the Trial Justice, no record of such agreement was made; it was not reduced to writing; and it was not the equivalent of an oral stipulation made in open court (Accarino v. Kirsch, 6 A D 2d 795, 797; Rosen v. Grand, 6 A D 2d 799, 801). In our opinion, the letter from the mother’s counsel to the Trial Justice, dated August 7, 1963, constituted an effective withdrawal of any prior consent to the entry of an order. In the absence of such consent, it was error for the trial court to enter an order without a hearing and without a judicial determination on the issues of fact and law raised by the petition and return (People ex rel. Cachelin v. Cachelin, 18 A D 2d 1057; Matter of Grose, 7 A D 2d 961; Matter of Jiranek, 267 App. Div. 607, 611). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.