Mistriel v. Mistriel

54 A.D.2d 945, 388 N.Y.S.2d 338, 1976 N.Y. App. Div. LEXIS 14830

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1976
• Status: Published

Opinion

In consolidated support proceedings pursuant to article 4 of the Family Court Act, the appellant husband appeals, as limited by his brief, from so much of an order of the Family Court, Westchester County, dated June 14, 1976, as, after a hearing, (1) committed him to the Westchester County Penitentiary for a period of 90 days, (2) stayed the commitment on condition that appellant comply with a prior order of child support and (3) failed to grant his application for a downward modification of support. Order modified, on the facts, by deleting the provision that the commitment be stayed on condition that appellant comply with the prior support order and substituting therefor a provision staying the commitment on the condition that the appellant make support payments of $30 per week, pending a review of the parties’ financial circumstances in December, 1976. As so modified, order affirmed insofar as appealed from, without costs or disbursements. The record does not support the conclusion that appellant has income in excess of his $95 weekly unemployment check. Inasmuch as the former support order of $70 per week was made at a time when he was earning approximately $235 per week, it would be unfair to require such payments to continue under his present circumstances (see Kreuger v Kreuger, 86 Mise 2d 857). This, however, is merely a temporary solution. Upon restoration of these proceedings to the Family Court Calendar in December, 1976, pursuant to the order appealed from, the parties’ circumstances should be re-evaluated to determine whether subsequent conditions permit an increase in child support payments. Martuscello, Acting P. J., Latham, Margett, Damiani and Titone, JJ., concur.