Opinion
January 14, 1971
Appeal from the Lewis Family Court.
Present — Goldman, P.J., Marsh, Gabrielli and Henry, JJ.
Order unanimously reversed on the law and facts without costs and matter remitted to Family Court, Lewis County, for further proceedings in accordance with the following memorandum: On a petition which sought to modify a Family Court support order by adding thereto a provision requiring the father (appellant) to pay for his infant daughter's medical expenses Family Court not only granted the relief requested but also increased the amount of the monthly support payments from $54.16 to $86.66 and required the father to file an undertaking in the amount of $3,120 to secure payment thereof. Appellant, appearing without an attorney, was not adequately advised of his right to cross-examine and to produce witnesses, and he was thus deprived of a proper hearing. ( Matter of Silvestris v. Silvestris, 24 A.D.2d 247, 249, 250.) Petitioner's testimony as to medical and other needs of the child is insufficient to support the order appealed from and findings of fact are not set forth to make appellate review possible. The requirement that appellant file an undertaking to secure the support payments was an improvident exercise of discretion. Appellant was only $54.16 in arrears and he offered to pay that amount at the hearing. Requiring a bond because appellant was enlisting in the Air Force would be contrary to the policy of the State that citizens should not be discriminated against because they are subject to military service (Military Law, § 318). A new hearing should be held in Family Court.