Gitman v. Gitman

81 A.D.2d 614, 440 N.Y.S.2d 556, 1981 N.Y. App. Div. LEXIS 11111

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1981
• Status: Published

Opinion

— In a support proceeding pursuant to article 4 of the Family Court Act, the parties cross-appeal from an order of the Family Court, Queens County, dated October 16, 1979, which directed the father to pay petitioner $75 per week alimony and $50 per week child support. Order reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court for a hearing de novo. The instant record is so confusing that we are prevented from properly considering the issues raised on appeal. The hearing examiner recommended an award to the petitioner wife of $75 per week for child support and $50 per week for alimony. The Family Court Judge purportedly confirmed this recommendation, and yet, the final order awarded the exact opposite, i.e., $75 per week alimony and $50 per week child support. Moreover, the instant petition was for enforcement of a Supreme Court judgment of divorce, which had granted petitioner $175 per week alimony and child support. There was no cross petition by the father for a downward modification of the alimony and support provisions of that judgment. Nevertheless, the hearing examiner recommended such a modification and the court granted one, though in different amounts. Accordingly, a new hearing is required on the enforcement petition. The father, if he be so advised, should file a cross petition for a downward modification of the judgment of divorce, and, if timely filed, the cross petition should be heard with the petition for enforcement. Mangano, J. P., Gibbons, Gulotta and O’Connor, JJ., concur.