Opinion
November 29, 1976
In a matrimonial action in which the plaintiff wife had been granted a judgment of divorce, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated June 30, 1976, as granted plaintiff's application for a wage deduction order pursuant to section 49-b Pers. Prop. of the Personal Property Law. Order reversed insofar as appealed from, without costs or disbursements, and action remanded to Special Term, with a direction that a hearing on the parties' motions to modify the support terms incorporated into the divorce decree be held forthwith. Under the circumstances of this case, the Special Term was without authority to grant plaintiff's application for a wage deduction order. Subdivision 3 of section 49-b Pers. Prop. of the Personal Property Law empowers the court to grant the order if the person liable to pay support pursuant to a court order has failed to present evidence sufficient to rebut the presumption of delinquency. In the case at bar, defendant was not given such an opportunity; the payroll deduction order was issued pending the hearing on his motion to modify his support obligations. We have directed that such hearing be held forthwith in order to avoid any injustice which might be occasioned by further delays. Margett, Acting P.J., Rabin, Hawkins and Mollen, JJ., concur.