Ruth v. Ruth

52 A.D.2d 1086, 384 N.Y.S.2d 309, 1976 N.Y. App. Div. LEXIS 13024

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1976
• Status: Published

Opinion

Order unanimously reversed, without costs, and hearing directed in accordance with the following memorandum: In this matrimonial case the parties cross-moved for an order modifying a divorce decree with respect to its provisions for alimony and child support payments. Both agreed that alimony provisions should be deleted based upon the wife’s having obtained employment subsequent to the entry of the decree and both agreed that child support payments should be increased. They differed, however, on the amount of such increase. The wife demanded that child support payments be increased from $30 per week to' $95 per week while the husband maintained that they should be increased from $30 per week to $60 per week. Special Term, without holding a hearing, increased child support payments to $82.50 per week and the husband appeals. The affidavits submitted by the parties show that there are three children of the marriage, aged 10, 9 and 6. At the time the divorce decree was entered the children were each more than three years younger, and not all were of school age. The record, however, is absent any evidence as to what the current needs of the children are, how much the wife earns, what her expenses are, and how much, if any, she could be expected to contribute to the children’s support. Accordingly, this case should be remitted for a hearing at which evidence of these factors may be presented (Sloan v Sloan, 29 AD2d 571; Levine v Levine, 29 AD2d 769; Oreste v Oreste, 27 AD2d 560; Peters v Peters, 14 AD2d 778). (Appeal from order of Erie Supreme Court—modify divorce decree.) Present—Marsh, P. J., Moule, Cardamone, Mahoney and Dillon, JJ.