Metzger v. Metzger

49 A.D.2d 687, 371 N.Y.S.2d 218, 1975 N.Y. App. Div. LEXIS 10534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 1975
• Status: Published

Opinion

Judgment unanimously modified, on the law and facts, and as modified affirmed, without costs, and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Inasmuch as there was no testimony at the trial as to the needs of the wife relative to the support of herself and the children and in the absence of findings by the trial court relative to these needs, this case must be remitted to the trial court for a further hearing and a determination on these issues. We stated in Tedrow v Tedrow (35 AD2d 768) that "There is insufficient proof in the record upon which to base findings as to the needs of the wife and children. Plaintiff’s uncorroborated generalities, largely conclusory in nature, fail adequately to show such needs. * * * Evidence as to the needs of the wife and children should be received and Trial Term should make findings of fact thereon.” Since there is no fact in the record relative to the needs of the wife and children other than generalities, we cannot, although empowered to do so, make appropriate findings at the appellate level. There is nothing in the record that would warrant this court finding that the counsel fees awarded by Special Term are excessive nor can we say, on the record as a whole, that the amount awarded constituted an abuse of discretion. The prior order of Special Term awarding the wife the sum of $150 per week as temporary alimony and child support should be continued pending a new hearing inasmuch as it is apparent from the record that the wife has no means of her own and no assets which would be available to her. (Appeal from judgment of Erie Trial Term in action for separation.) Present—Marsh, P. J., Cardamone, Mahoney, Del Vecchio and Witmer, JJ.