Zagari v. Zagari , 416 N.Y.S.2d 145 ( 1979 )

Judgment unanimously affirmed, without costs, and matter remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following memorandum: On this appeal from a judgment granting a dual divorce, defendant contends that, under the Hessen doctrine (Hessen v Hessen, 33 NY2d 406), a divorce should not have been granted to plaintiff, and that defendant should have been allowed rights of visitation with her 11-year-old son, custody of whom was granted to plaintiff. The record supports the trial court’s finding that defendant engaged in a course of cruel and inhuman treatment, making it improper and unsafe for plaintiff to cohabit with her. Therefore, we find no abuse of discretion of the court in granting a divorce to plaintiff as well as to defendant. The court did not pass on whether defendant was entitled to visitation rights and there was no substantial evidence that visitation would be detrimental to the child’s welfare (Farhi v Farhi, 64 AD2d 840, 842; Hotze v Hotze, 57 AD2d 85, 87). The court should consider defendant’s right to see her son and determine the extent of visitation. (Appeal from judgment of Monroe Supreme Court— divorce.) Present—Dillon, P. J., Simons, Hancock, Jr., Callahan and Moule, JJ.