Moscato v. Moscato

50 A.D.2d 894, 377 N.Y.S.2d 535, 1975 N.Y. App. Div. LEXIS 11794

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1975
• Status: Published

Opinion

— In a proceeding pursuant to article 4 of the Family Court Act, the appeal is from an order of the Family Court, Kings County, dated March 26, 1975 and made after a hearing, which, upon reargument as to a prior order of the same court, dated January 6, 1975 (which set arrears at $675 and required a cash bond of $250 on the first default), fixed arrears at $569 and otherwise continued the order of January 6, 1975. Order modified, on the law, by striking that portion thereof which refixed the arrears, and the proceeding is remanded to the Family Court for a further hearing and a new determination on the question of the amount of arrears. As so modified, order affirmed, without costs. In light of the existence of strongly disputed issues of fact as to the amount of the arrears and appellant’s payments, it was error for the Family Court to decide those issues without a hearing (cf. Slater v Slater, 43 AD2d 535; Matter of Passonno v Passonno, 43 AD2d 773; Matter of Tucker v Tucker, 41 AD2d 995; Matter of Hall [Wells-Friedman] 35 AD2d 758). We note that upon the further hearing, the arrears under the June 21, 1971 support order, as continued by the judgment of divorce between the parties, should be reduced by deleting that portion of the weekly payment which was for the support of the petitioner wife since the date of her remarriage (Domestic Relations Law, § 248). Under the circumstances of this case, it was not an abuse of discretion to. require that. appellant give a $250 cash bond on the first default. Rabin, Acting P. J., Latham, Cohalan, Margett and Brennan, JJ., concur.