Anderson v. Anderson

25 A.D.2d 512, 267 N.Y.S.2d 75, 1966 N.Y. App. Div. LEXIS 4944

Opinion

Order of commitment for violation of family offense order, entered November 16, 1965, unanimously reversed on the law, and the proceedings remanded to Family Court with leave to amend the petition or to make and file a supplemental petition, and for reconsideration of any punishment imposed, without costs or disbursements to either party. While Family Court proceedings are permitted to be informal, due process considerations require that a commitment be based on a petition alleging the facts supporting the commitment (Family Ct. Act, §§ 821, 827). In this ease, the only petition filed was for an event in May, 1965 which petitioner wife had abandoned and which the hearing court observed was no longer applicable. Because of serious misconduct charged to the husband and his flagrant violation of the temporary order, however lacking as it was in a proper pleading basis, the proceedings should be remanded so that the court may provide the protection needed by petitioner wife. In passing, it is observed that the 90-day sentence may have been excessive, especially if consideration be given to maintaining the respondent husband’s capacity to support petitioner wife.

Concur — Breitel, J. P., Rabin, MeNally and Steuer, JJ.