Rose v. Rose , 246 N.Y.S.2d 102 ( 1963 )

In an action by a wife for an absolute divorce, in which a final judgment had been entered in her favor in 1952, directing, inter alia, that the husband pay $25 a week for the support and maintenance of herself and the then infant issue of the marriage, the defendant appeals, as limited by his brief, from so much of an order.of the Supreme Court, Kings County, entered July 5, 1963, granting the plaintiff’s motion to amend the judgment, as directed that defendant pay $20 a week to the plaintiff for her sole support and maintenance. Order, insofar as appealed from, reversed, without costs, and motion remitted to the Special Term: - (a) for a hearing and the taking of proof as to whether there has been such a change in the circumstances of either party since entry of the judgment of divorce as to warrant an increase in the support payments for the wife; and (b) for its determination de novo upon the basis of all the proof adduced. In our opinion, questions of fact were presented which should not have been decided on the basis of the conflicting affidavits of the respective parties (Nabut v. Nabut, 271 App. Div. 935; Bittson v. Bittson, 7 -A D 2d 867; Frawley v. Frawley, 9 A D 2d 895; Schulsinger v. Schulsinger, 9 A D 2d 909). Beldock, P. J., Kleinfeld, Brennan, Hill and Hopkins, JJ., concur.