Brock v. Brock

33 A.D.2d 632, 305 N.Y.S.2d 118, 1969 N.Y. App. Div. LEXIS 3039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1969
• Status: Published

Opinion

Order unanimously reversed on the law and facts, with costs, petition reinstated, and matter remitted to Erie County Family Court for further proceedings in accordance with the following memorandum: The evidence does not support the trial court’s conclusion, implicit in its determination, that respondent is providing fair and reasonable support for appellant and their two dependents, aged 15 and 18. On the contrary, the amount presently being paid appears to be inadequate. Despite the lack of any findings which are required (Family Ct. Act, § 165) in order to reach an informed judgment and which provide the basis for an intelligent review, the record demonstrates that respondent is not providing proper support in relation to his means, his dependents’ needs and station in life. (Family Ct. Act, §§ 412, 413, 414). We further point out that the trial court erred in requiring appellant to show, whether she was about to become a public charge, since section 464 of the Family Court Act was not here applicable. A decision, based on findings, will also reveal whether the court took into account the assets of the mother or estate of the children which, under the circumstances here present, it may not do. (Drazin v. Drazin, 31 A D 2d 531; Matter of Silvestris v. Silvestris, 24 A D 2d 247; Santasiero v. Briggs, 278 App. Div. 15; cf. Phillips v. Phillips, 1 A D 2d 393, affd. 2 N Y 2d 742.) Additionally, we are constrained to point out that upon the record before us, petitioner’s application for counsel fees deserves favorable consideration. (Appeal from order of Erie Family Court dismissing petition for support.) Present — Goldman, P. J., Del Vecehio, Witmer, Gabrielli and Bastow, JJ.