Sweeney v. Sweeney , 331 N.Y.S.2d 499 ( 1972 )

n an action for divorce, defendant appeals from a judgment of the Supreme Court, Richmond County, entered October 15, 1971, which granted plaintiff a divorce on the ground of cruel and inhuman treatment and awarded her alimony, support for the parties’ two infant children, and counsel fees. Judgment modified on the facts and in the interests of justice by striking therefrom the second, third and fourth decretal provisions, which awarded plaintiff custody of the issue of the marriage, granted defendant visitation rights, and granted plaintiff $100 per week alimony and support for her and the infant children and matter remitted to the trial court for a hearing and new determination on the above issues, and for entry of an amended judgment after rendition of such new determination. As so modified, judgment affirmed, without costs. Upon oral argument of the instant appeal, by the husband, pro se, the court was informed that the plaintiff was presently ill and incapable of taking care of the children, and that the infant children are presently residing with their paternal grandparents. In light of these changes in circumstances, we deem it to be in the best interests of the children to remit to the lower court for a new determination. Rabin, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.