In an action in which a judgment of the Supreme Court, Kings County, was entered, Inter alia, granting plaintiff and defendant a divorce, defendants appeal from an order of the same court, dated July 27, 1978, which, upon plaintiff’s motion, “resettled and clarified” the judgment of divorce, by (1) amending and reducing defendant H’s visitation privileges, and (2) amending a provision whereby plaintiff would be responsible for certain hospitalization expenses incurred by defendant.
By judgment of the Supreme Court, plaintiff, Mr. H, and defendant Mrs. H were both granted a divorce. That judgment awarded temporary custody of the couple’s son to plaintiff. Mrs. H was to have visitation on the first, second and fourth weekends of each month, as well as on certain other days. The judgment further provided as follows:
“ORDERED, ADJUDGED and DECREED, that the plaintiff will pay any hospitalization fees in the event that the defendant is committed to a psychiatric hospital by a duly certified psychiatrist; that the plaintiff’s attorney shall receive a doctor’s prescription of the defendant’s need and a further copy furnished to this Court”.
By notice of motion, plaintiff moved “for an Order modifying the provisions of (the divorce) judgment providing for alimony payments, payment of expenses for the future, if any, for hospitals and institutions to which the defendant, may be confined, for psychiatric treatment, modifying the visitation by the defendant, with the infant issue of the former marriage, and for such other and further relief as to the Court may seem just and proper.”
During the ensuing conference, the Judge ruled on the issues raised by plaintiff’s motion. Notwithstanding defendants’ request for a hearing, none was held and no evidence was permitted to be given by the parties themselves. An order was entered incorporating the substance of the rulings made by the court in chambers. This order “resettled and clarified” the original judgment with regard to visitation. The amended judgment (1) reduced Mrs. H’s weekend visitation from three weekends per month to two weekends per month, (2) added a provision that if the child were engaged in school-related athletic events on days when visitation was scheduled, specified days would be substituted, and (3) added a provision that on days when weekend visitation was scheduled, plaintiff was to bring the child from his home in New Jersey to a specified place in New York City, where Mrs. H would pick him up (Mrs. H was to return the child to New York City from her home in Garden City at the conclusion of visitation, there to be picked up by plaintiff).
In our view, Special Term erred in amending Mrs. H’s visitation rights without first conducting a hearing. It is well-settled in this Department that the issue of visitation, like that of custody, may not be determined on the basis of recriminatory and controverted affidavits, but only after a full and plenary hearing. While we do not hold that the substance of the modifications was an abuse of the court’s discretion, we are of the view that the parties themselves, as well as their 14-year-old son, should have been given the opportunity to present evidence on the issue of visitation. The testimony of the child would have been a particularly valuable aid to the court in determining his best interest, which is of course the paramount concern in a dispute over visitation.
They are further of the view that the amendment of the provision regarding Mrs. H’s hospitalization expenses without a hearing was in certain respects improper. The judgment as “resettled and clarified” requires a full commitment hearing, at which plaintiff shall be present with his own certified psychiatrist, before plaintiff will be deemed responsible for the expenses of Mrs. H’s commitment. The original judgment did not require such a hearing and, plaintiff’s position to the contrary notwithstanding, there is no evidence that the parties in fact contemplated such a hearing. This change is unquestionably one of substance. Accordingly, all references to a hearing as a condition precedent to plaintiff’s liability for the costs of Mrs. H’s commitment must be deleted from the judgment as “resettled and clarified”.
The new judgment also requires certification of mental illness by two certified psychiatrists, whereas the original judgment required such certification by only one certified psychiatrist. However, in view of the statement of defendants’ counsel at oral argument that he had no objection to this modification, we see no reason to disturb it.
An ordinary person, not acquainted with the technicalities of the law may be easily deprived of his/her rights before the court in the absence of skilled lawyer.