Opinion
December 20, 1956
Appeal from an order of the Supreme Court, Special Term, Albany County, which, on plaintiff's motion, modified a judgment of divorce by increasing the amount awarded for alimony and the support of the parties' children from $40 per week to $100 per week. Plaintiff-appellant contends that the increased amount is inadequate. It sufficiently appears from the papers that defendant is the sole stockholder of a corporation engaged in the restaurant business and that his income has increased substantially since the judgment of divorce was granted in 1947. There is, however, an extreme divergence between the parties' contentions as to the amount of defendant's income and his resources. As to these, plaintiff's proof is largely hearsay and the defendant's averments in very general terms are unsupported by documentary or other proof. Defendant did, however, offer to submit copies of income tax returns for some years past and to produce his accountant for examination. Plaintiff's claims as to her needs and those of her children appear, superficially at least, to be inflated. Under all these circumstances, and in view of the fact that a correct determination must in part depend on the facts as to the profits of defendant's business enterprise, we believe that the Special Term should have received proof at a hearing or have referred the matter for that purpose. While it may well be that the determination was correct, upon such competent proof as was afforded by the papers, a firmer factual basis is available and is desirable in the circumstances here existing. We consider this one of those cases in which the "generalities of * * * [the] affidavits should be amplified by full proof". ( Edwards v. Edwards, 282 App. Div. 273, 275.) Order reversed, on the law and the facts, without costs, and matter remitted to the Special Term for hearing thereat or before an official referee. Foster, P.J., Bergan, Coon and Gibson, JJ., concur.