Opinion
December 26, 1972
In a support proceeding pursuant to article 4 of the Family Court Act, the appeal is from an order of the Family Court, Nassau County, dated January 10, 1972 and entered March 20, 1972, which modified a prior order of the said court dated June 22, 1970 and entered August 24, 1970, by increasing the sum awarded as child support from $30 to $40 per week. Order modified, on the law, by striking the words "on consent" from the decretal paragraph thereof. As so modified, order affirmed, without costs. The findings of fact below are affirmed. It is clear that appellant's attorney made timely objection to the ruling of the Family Court and thus the order appealed from is erroneous in stating that it was entered on consent. It is thus appealable. In our opinion, the increase to $40 per week was supported by the evidence. Christ, Brennan and Benjamin, JJ., concur; Hopkins, Acting P.J., and Gulotta, J., dissent and vote to reverse and to grant a new hearing, with the following memorandum: We agree that the order is appealable. However, in our opinion, a new hearing is required because the record is barren of any evidence which would tend to establish the child's requirements ( Matter of Barry v. Barry, 32 A.D.2d 540; Matter of Silvestris v. Silvestris, 24 A.D.2d 247).