Kronenberger v. Kronenberger

—Order unanimously reversed on the law with costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: The parties were divorced by judgment of Supreme Court, entered June 18, 1991, which incorporated but did not merge the terms of the parties’ separation 1060 agreement. The separation agreement provided for joint custody of the parties’ children, with primary residence with respondent mother. On August 26, 1991, petitioner father brought an order to show cause seeking physical custody of the children. On September 18, 1991, an order was entered awarding temporary physical custody of the children to respondent. Thereafter, on July 6, 1992, petitioner brought another order to show cause seeking physical custody. Supreme Court, by order dated September 18, 1992, dismissed the prior application for a change in custody, without prejudice, and again awarded respondent temporary physical custody of the children. On October 15, 1993, petitioner brought an order to show cause, this time seeking sole custody of the children. On October 27, 1993, Supreme Court granted the motion of respondent’s counsel to withdraw and scheduled a pretrial conference, which was held on November 18, 1993. Respondent’s newly-retained counsel, petitioner’s counsel and the Law Guardian attended the pretrial conference, where, without a hearing, the court granted petitioner’s order to show cause, transferred temporary physical custody of the children to petitioner, granted visitation to respondent and terminated petitioner’s obligation to pay child support. "Absent a showing of extraordinary circumstances, it was error for Supreme Court to make a temporary custody determination in an ex parte order to show cause” (Alberts v Alberts, 168 AD2d 1004; Biagi v Biagi, 124 AD2d 770). We, therefore, reverse and remit the matter to Supreme Court for a hearing on the issue of custody. (Appeal from Order of Supreme Court, Monroe County, Stander, J.—Transfer Temporary Custody.) Present—Green, J. P., Lawton, Fallon, Doerr and Boehm, JJ.