Van Niel v. Van Niel

Appellate Division of the Supreme Court of New York

Van Niel v. Van Niel

93 A.D.2d 986, 461 N.Y.S.2d 636, 1983 N.Y. App. Div. LEXIS 17899

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 1, 1983

StatusPublished

Cited by12 cases

This text of 93 A.D.2d 986 (Van Niel v. Van Niel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Van Niel v. Van Niel, 93 A.D.2d 986, 461 N.Y.S.2d 636, 1983 N.Y. App. Div. LEXIS 17899 (N.Y. Ct. App. 1983).

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Opinion

— Order unanimously reversed, without costs, and matter remitted to Supreme Court, Monroe County, for a hearing, in accordance with the following memorandum: When a party seeks modification of a prior support order based upon a change in circumstances, the court should conduct a full hearing to determine whether the alleged change warrants modification (see Huber v Huber, 59 AD2d 1063; Matter ofMonesi v Monesi, 55 AD2d 1020; Rollins v Rollins, 33 AD2d 990). If such a request for increased child support is predicated on the child’s right to receive adequate support, the principles iterated in Matter ofBoden v Boden (42 NY2d 210) do not alter the court’s power to order support (Matter of Brescia v Fitts, 56 NY2d 132, 139-140). It is no longer necessary to demonstrate an unanticipated and unreasonable change in circumstances to justify an increase. “It is sufficient in such a case that a change in circumstances has occurred warranting the increase in the best interests of the child” (Matter of Michaels v Michaels, 56 NY2d 924, 926; Pfleger v Westfall, 90 AD2d 978). Inasmuch as the moving papers raise disputed issues of fact as to these matters, it was improper to deny the petition without conducting a hearing on the issue. (Appeal from order of Supreme Court, Monroe County, Mastrella, J. — modify divorce decree.) Present — Dillon, P. J., Callahan, Doerr, Boomer and Schnepp, JJ.

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— Order unanimously reversed, without costs, and matter remitted to Supreme Court, Monroe County, for a hearing, in accordance with the following memorandum: When a party seeks modification of a prior support order based upon a change in circumstances, the court should conduct a full hearing to determine whether the alleged change warrants modification (see Huber v Huber, 59 AD2d 1063; Matter ofMonesi v Monesi, 55 AD2d 1020; Rollins v Rollins, 33 AD2d 990). If such a request for increased child support is predicated on the child’s right to receive adequate support, the principles iterated in Matter ofBoden v Boden (42 NY2d 210) do not alter the court’s power to order support (Matter of Brescia v Fitts, 56 NY2d 132, 139-140). It is no longer necessary to demonstrate an unanticipated and unreasonable change in circumstances to justify an increase. “It is sufficient in such a case that a change in circumstances has occurred warranting the increase in the best interests of the child” (Matter of Michaels v Michaels, 56 NY2d 924, 926; Pfleger v Westfall, 90 AD2d 978). Inasmuch as the moving papers raise disputed issues of fact as to these matters, it was improper to deny the petition without conducting a hearing on the issue. (Appeal from order of Supreme Court, Monroe County, Mastrella, J. — modify divorce decree.) Present — Dillon, P. J., Callahan, Doerr, Boomer and Schnepp, JJ.

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Bluebook (online)

93 A.D.2d 986, 461 N.Y.S.2d 636, 1983 N.Y. App. Div. LEXIS 17899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-niel-v-van-niel-nyappdiv-1983.

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