Opinion
June 3, 1977
Appeal from the Erie County Family Court.
Present — Moule, J.P., Cardamone, Simons, Dillon and Goldman, JJ.
Order unanimously affirmed, without costs. Memorandum: Respondent father secured a divorce from appellant mother on October 27, 1975. Custody of the children was divided between the parties with the mother being awarded custody of three daughters and the father custody of two sons. The decree provided for payment by the father of $40 per week for the support of each of the three children residing with the mother. Prior to and after the decree the father was receiving $163 per month Social Security benefits for one daughter, Patricia. In March or April of 1976 the mother applied for the Social Security payments for Patricia and the payments were thereafter paid to her for Patricia's support. The father thereupon petitioned Family Court to cancel the $40 per week payment he was making for Patricia's support. Upon the hearing no proof was presented by the mother to show any change in circumstances during the approximately six months since the granting of the divorce decree. By securing the Social Security payments, the mother was receiving the $40 per week provided for Patricia in the decree and therefore there was no proof before Family Court of any change in the mother's circumstances (Swartz v Swartz, 43 A.D.2d 1012). Absent any contradiction of the proof presented by the father, no further hearing was required and Family Court properly granted the respondent father's petition.