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Matter of Atkins v. Atkins

Appellate Division of the Supreme Court of New York, First Department
Nov 2, 1967
28 A.D.2d 1098 (N.Y. App. Div. 1967)

Opinion

November 2, 1967


Order of Family Court, entered January 27, 1967, following hearing upon petition for violation of support order, unanimously reversed and vacated on the law and the facts, and in the exercise of discretion, without costs or disbursements, and matter remanded to the Family Court for rehearing and rendition of proper order. Where a respondent is brought before the court for failure to obey the provisions of a support order, the court should hold a hearing and take proofs on the issue of whether or not the failure of respondent was willful. (See Family Ct. Act, § 454; see, also, Matter of Emerick v. Emerick, 24 A.D.2d 872.) On the basis of the evidence adduced before it, the court should render a decision, which may be stated on the record, setting forth the essential facts in support of its order. (See Matter of Schwartz v. Schwartz, 23 A.D.2d 204; Matter of Harris v. Doley, 22 A.D.2d 769.) The court, in making its determinations, should exercise its discretion on the basis of evidence as to the means and earnings of the respondent, the needs of the petitioner and all facts and circumstances bearing on the alleged willful failure of respondent to comply with the support order. The present record does not support the court's determination which, although fixing the arrears at $1,478, postponed any payment by the respondent thereon until February 1, 1968, and provided for payments beginning then at only $10 monthly on such arrears.

Concur — Eager, J.P., Steuer, Tilzer, McNally and McGivern, JJ.


Summaries of

Matter of Atkins v. Atkins

Appellate Division of the Supreme Court of New York, First Department
Nov 2, 1967
28 A.D.2d 1098 (N.Y. App. Div. 1967)
Case details for

Matter of Atkins v. Atkins

Case Details

Full title:In the Matter of ETHEL ATKINS, Appellant, v. THOMAS ATKINS, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 2, 1967

Citations

28 A.D.2d 1098 (N.Y. App. Div. 1967)

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