Boden v. Leccese
| Decision Date | 27 July 1981 |
| Citation | 441 N.Y.S.2d 539,83 A.D.2d 636 |
| Parties | In the Matter of Lorraine BODEN, Respondent, v. Patrick LECCESE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Marchese & Sallah, P. C., Farmingdale (Donald R. Sallah, Farmingdale, of counsel), for appellant.
Before HOPKINS, J. P., and LAZER, GIBBONS and COHALAN, JJ.
MEMORANDUM BY THE COURT.
In a support proceeding, the appeal is from an order of the Family Court, Nassau County, dated November 29, 1979, which, after a hearing, (1) found that the appellant had willfully violated a prior order of support, dated February 8, 1973, and committed him to the Nassau County jail for 30 days "in lieu of cash bond in the amount of $1,901.75 to be applied against arrears"; (2) entered an income deduction order; and (3) denied appellant's application for modification (suspension) of the prior order of support.
Order modified, on the law, by deleting the provisions thereof sentencing the appellant to 30 days in the Nassau County jail, and denying the appellant's application for modification of the support order. As so modified, order affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for further proceedings consistent herewith.
The appellant is in default in the payments due under the support order, and the arrears of $1,901.75 found by the Family Court to be due and owing were properly determined. Moreover, it was proper for the court to enter an income deduction order in the meantime. However, we find that the appellant should be accorded a further hearing on his petition for a modification of the support order, at which time the financial ability of the petitioner-mother and her husband to provide support for the parties' children and the degree and manner in which the particular needs of the children might be affected by any modification may be determined. In addition, the appellant may, if he is so advised, supplement the evidence presented at the original hearing with other relevant evidence as to his financial circumstances.
We find the present record inadequate for a determination of the application for a modification of the support order.
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...those of the custodial parent's spouse. Farley v. Farley, 114 A.D.2d 703, 494 N.Y.S.2d 546 (3rd Dept., 1985); Boden v. Leccese, 83 A.D.2d 636, 441 N.Y.S.2d 539 (2nd Dept., 1981). Indeed, one of the resources may be the ability to earn of the non-custodialand that the exception of subsection......
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McCarthy on Behalf of Erie County Dept. of Social Services v. Spearman
...joined with a petition for modification, it is error not to consider respondent's alleged changed circumstances (Matter of Boden v. Leccese, 83 A.D.2d 636, 441 N.Y.S.2d 539; Matter of Department of Social Servs. of St. Lawrence County v. Arquiette, 74 A.D.2d 961, 425 N.Y.S.2d 892). Even abs......
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