Opinion
November 9, 1970
In a support proceeding, petitioner appeals, as limited by her brief, from so much of an order and corrected order of the Family Court, Nassau County, entered April 28, 1970 and June 4, 1970, respectively, as granted respondent's application to modify a prior support order of said court, dated July 1, 1969, directing respondent to pay petitioner $40 per week and $5 per week for arrears, for petitioner's support, to the extent of directing respondent to pay $20 per week and $5 per week for arrears. Appeal from order entered April 28, 1970 dismissed as academic, without costs. That order was superseded by the order entered June 4, 1970. Order entered June 4, 1970 reversed insofar as appealed from, on the law and the facts, without costs and respondent's application denied. In our opinion, the record of the hearing below is devoid of any evidence to sustain respondent's burden of showing that his financial circumstances materially altered since the issuance of the prior support order of July 1, 1969. Therefore it was error, under such circumstances, to modify the prior support order ( Matter of Sullivan v. Sullivan, 55 Misc.2d 691, affd. 29 A.D.2d 739). Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.