Schmeling v. Schmeling

178 A.D.2d 999, 578 N.Y.S.2d 757, 1991 N.Y. App. Div. LEXIS 17863

Opinion

— Order unanimously reversed on the law without costs and matter remitted to Onondaga County Family Court for further proceedings, and stay continued, in accordance with the following Memorandum: The Family Court and the Hearing Examiner erred in admitting two unsworn letters into evidence in support of petitioner’s request for an upward modification of support. A hearing to determine a request for modification of a support order is governed by the rules of evidence (Family Ct Act § 439 [d]); thus, unsworn testimony is inadmissible (see, Richardson, Evidence § 388 [Prince 10th ed]). Unverified financial data cannot serve as a basis for a Family Court order for support (Eason v Eason, 86 AD2d 666; see also, Nowacki v Nowacki, 90 AD2d 795, 796). We therefore reverse and remit the matter to Onondaga County Family Court for a new hearing. Further, the financial provisions of the order granting a stay pending appeal are continued pending the outcome of that hearing. (Appeal from Order of Onondaga County Family Court, Buck, J. — Child Support.) Present — Denman, P. J., Callahan, Balio, Lawton and Davis, JJ.