Van Niel v. Van Niel

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

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.