Opinion
June 19, 1967
Order of the Family Court, Suffolk County, dated September 15, 1966, modified, on the law and the facts, by (1) striking therefrom the provision that (a) appellant pay $1,000 in arrears as a condition for reduction of the amount of support payments to $100 per week and, (b) if he fail to comply with that condition, his application for reduction of the amount is denied; and (2) substituting a provision reducing the amount of the support payment direction to $100 per week, effective as of July 1, 1966. As so modified, order affirmed, without costs. Any payments made by appellant on account of the two orders of this court dated January 30, 1967 and February 14, 1967, respectively, are to be reckoned as credits against said order of the Family Court dated September 15, 1966, as hereby modified and affirmed. In our opinion, the record warranted an absolute reduction of the support payments to $100 per week, effective July 1, 1966, the date appellant filed his petition for modification of the $125 weekly payments required by the outstanding order of June 25, 1965. The record contains no factual basis upon which it could have been concluded that appellant was of sufficient resources to require, as a condition for reduction, the payment of $1,000 in arrears. If appellant's income level is actually as low as he claims it to be ($93 a week), he is free to move for further reconsideration in the Family Court and there make a proper evidentiary showing thereon, which is presently lacking. Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.