Opinion
December 15, 1971
Appeal from an order of the Family Court, Rensselaer County, directing appellant to pay the sum of $75 per week for the support of his wife and infant child. The order appealed from must be reversed. We concur in appellant's contention that the fact that no petition for an order of support was ever filed in this proceeding rendered the Family Court without jurisdiction (Family Ct. Act, § 423). In addition we would note that there is absolutely no competent proof in the instant record as to financial needs of the wife and child ( Matter of Kennedy v. De Los Reyes, 26 A.D.2d 815; Matter of Silvestris v. Silvestris, 24 A.D.2d 247). The wife did not testify as to her needs or those of the child. The only basis for the award made is the unsworn statement made by the attorney for the Department of Social Services in the course of colloquy between the court and counsel that respondent's public assistance budget was $325 per month. This, of course, does not constitute legal evidence. Moreover, it is contrary to the wife's unsworn statement that she was receiving $56 per week, $26 from the Department of Social Services and $30 from appellant. Accordingly, this proceeding must be remanded to the Rensselaer County Family Court with direction that a proper support proceeding be initiated and conducted so as to resolve all the issues here in dispute. Order reversed, on the law, and matter remitted to the Family Court, Rensselaer County, for further proceedings not inconsistent herewith, without costs. Reynolds, J.P., Aulisi, Staley, Jr., Greenblott and Sweeney, JJ., concur.