Tosi v. Tosi , 265 N.Y.S.2d 596 ( 1965 )

Order of the Family Court entered December 9, 1963 directing respondent-appellant to make support payments of $50 per week, unanimously reversed, on the law and in the exercise of discretion, without costs, and matter remitted to the Family Court, Bronx County, for further proceedings in accordance with this memorandum decision. In the meantime, payments shall continue pursuant to section 434 of the Family Court Act. Section 412 of the Family Court Act, providing for the support of a wife by her husband, requires that the court allow “ a fair and reasonable sum, as the court may determine, having due regard to the circumstances of the respective parties.” The record before us is wholly inadequate to permit a determination “ of the circumstances of the respective parties”. Similarly, the record is insufficient to enable the court to make a proper determination of what would be a reasonable sum to be paid for the support of the child “ according to [the father’s] means”. (Family Ct. Act, § 413.) While there was some discussion with respect to the father’s earnings, there was no satisfactory proof offered in that regard. It is significant that the probation officer who was charged with ascertaining the amount of the husband’s earnings, reported to the court that he had not as yet received such information from the husband’s employer. However, despite the absence of such information the court made a finding with respect to the husband’s income. Nor was there sufficient proof with respect to the father’s needs — proof essential to the making of a determination as to his means. Accordingly, the matter should be remanded for further proof. (Matter of Silvestris v. Silvestris, 24 A D 2d 247.) Appeal from an order of the Family Court entered on March 13, 1964, denying modification of the support order of December 9, 1963, dismissed, without costs. In the light of the determination in [above appeal] this appeal has been rendered academic. Concur—'Botein, P. J., Breitel, Rabin, McNally and Staley, JJ.