Covington v. Clavin

Appellate Division of the Supreme Court of New York

Covington v. Clavin

70 A.D.2d 592, 416 N.Y.S.2d 72, 1979 N.Y. App. Div. LEXIS 12004

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 7, 1979

StatusPublished

Cited by5 cases

This text of 70 A.D.2d 592 (Covington v. Clavin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Covington v. Clavin, 70 A.D.2d 592, 416 N.Y.S.2d 72, 1979 N.Y. App. Div. LEXIS 12004 (N.Y. Ct. App. 1979).

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Opinion

— In a support proceeding pursuant to article 4 of the Family Court Act, petitioner appeals from so much of an order of the Family Court, Orange County, dated August 14, 1978, as denied, without a hearing, her application for an upward modification of the child support provisions of a separation agreement. Order reversed insofar as appealed from, without costs or disbursements, and proceeding remitted to the Family Court for a hearing in accordance herewith. In this case petitioner sought an upward modification of child support claiming that inflation and the fact that the children had grown older, and therefore had greater needs, had led to greater expenses for their care. The Family Court denied the application, without a hearing, stating that inflation and the increased age of the children were not sufficient grounds for an increase in support. It is our opinion that under the circumstances of this case the Family Court should have held a hearing on the petition. The cases of Matter of Gould v Hannan (57 AD2d 517, 518) and Liebmann v Liebmann (19 AD2d 821), upon which respondent relies, are not to the contrary. Those cases hold that a party seeking increased child support may not establish a case merely by proving that there has been inflation or that the children have grown older since the date upon which the support was originally fixed. General proof as to the rate of inflation and increased age of the children is insufficient. Specific proof is required (1) that the expenses on behalf of the children have increased and (2) that the father has the present ability to pay an increase. In this case the petition was supported by a financial statement made by the petitioner. She was prepared to testify as to the increased expenses on behalf of the children. The father also submitted a financial statement. The failure to hold a hearing deprived petitioner of an opportunity to examine him with respect thereto. Accordingly, the Family Court erred in dismissing the petition, without a hearing. Hopkins, J. P., Damiani, Rabin and Mangano, JJ., concur.

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— In a support proceeding pursuant to article 4 of the Family Court Act, petitioner appeals from so much of an order of the Family Court, Orange County, dated August 14, 1978, as denied, without a hearing, her application for an upward modification of the child support provisions of a separation agreement. Order reversed insofar as appealed from, without costs or disbursements, and proceeding remitted to the Family Court for a hearing in accordance herewith. In this case petitioner sought an upward modification of child support claiming that inflation and the fact that the children had grown older, and therefore had greater needs, had led to greater expenses for their care. The Family Court denied the application, without a hearing, stating that inflation and the increased age of the children were not sufficient grounds for an increase in support. It is our opinion that under the circumstances of this case the Family Court should have held a hearing on the petition. The cases of Matter of Gould v Hannan (57 AD2d 517, 518) and Liebmann v Liebmann (19 AD2d 821), upon which respondent relies, are not to the contrary. Those cases hold that a party seeking increased child support may not establish a case merely by proving that there has been inflation or that the children have grown older since the date upon which the support was originally fixed. General proof as to the rate of inflation and increased age of the children is insufficient. Specific proof is required (1) that the expenses on behalf of the children have increased and (2) that the father has the present ability to pay an increase. In this case the petition was supported by a financial statement made by the petitioner. She was prepared to testify as to the increased expenses on behalf of the children. The father also submitted a financial statement. The failure to hold a hearing deprived petitioner of an opportunity to examine him with respect thereto. Accordingly, the Family Court erred in dismissing the petition, without a hearing. Hopkins, J. P., Damiani, Rabin and Mangano, JJ., concur.

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Bluebook (online)

70 A.D.2d 592, 416 N.Y.S.2d 72, 1979 N.Y. App. Div. LEXIS 12004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/covington-v-clavin-nyappdiv-1979.

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