Opinion
May 28, 1976
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Mahoney and Dillon, JJ.
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 A.D.2d 571; Levine v Levine, 29 A.D.2d 769; Oreste v Oreste, 27 A.D.2d 560; Peters v Peters, 14 A.D.2d 778).