Leuer v. Class

Appellate Division of the Supreme Court of New York

Leuer v. Class

145 A.D.2d 963, 538 N.Y.S.2d 712, 1988 N.Y. App. Div. LEXIS 14027

Appellate Division of the Supreme Court of the State of New York·Decided December 23, 1988·Published·Cited by 1 cases

Opinion

— Order unanimously reversed on the law without costs [964]*964and matter remitted to Niagara County Family Court for further proceedings, in accordance with the following memorandum: Petitioner appeals from an order which granted his motion to reargue but adhered to a prior order increasing his child support obligation. There is no basis for disturbing the order granting petitioner’s motion to reargue. Respondent has waived any objection to the possible untimeliness of the motion by failing to oppose it on that ground and by failing to appeal from that portion of the order granting reargument. The court erred, however, in determining the cross petition for upward modification of petitioner’s child support obligation without conducting a hearing (Wyser-Pratte v Wyser-Pratte, 66 NY2d 715, 717; Waby v Waby, 143 AD2d 506; Torre a Torre, 142 AD2d 942). We note that the record does not support respondent’s contention that the order was entered on consent. (Appeal from order of Niagara County Family Court, Halpin, J. — modification of child support.) Present — Doerr, J. P., Denman, Balio, Lawton and Davis, JJ.

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— Order unanimously reversed on the law without costs [964]*964and matter remitted to Niagara County Family Court for further proceedings, in accordance with the following memorandum: Petitioner appeals from an order which granted his motion to reargue but adhered to a prior order increasing his child support obligation. There is no basis for disturbing the order granting petitioner’s motion to reargue. Respondent has waived any objection to the possible untimeliness of the motion by failing to oppose it on that ground and by failing to appeal from that portion of the order granting reargument. The court erred, however, in determining the cross petition for upward modification of petitioner’s child support obligation without conducting a hearing (Wyser-Pratte v Wyser-Pratte, 66 NY2d 715, 717; Waby v Waby, 143 AD2d 506; Torre a Torre, 142 AD2d 942). We note that the record does not support respondent’s contention that the order was entered on consent. (Appeal from order of Niagara County Family Court, Halpin, J. — modification of child support.) Present — Doerr, J. P., Denman, Balio, Lawton and Davis, JJ.

Leuer v. Class, 145 A.D.2d 963, 538 N.Y.S.2d 712, 1988 N.Y. App. Div. LEXIS 14027 (N.Y. Ct. App. 1988).

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