Donnelly v. Strickland ( 1967 )

Order unanimously modified, and as modified affirmed, without costs, and matter remitted to Yates County Family Court for further proceedings in accordance with the Memorandum, for determination only as to the amount respondent should pay for the support of the child. Memorandum: Petitioner-mother appeals from a Family Court order granting $5 a week for the support of the six-year-old daughter of the parties. Family Court properly determined that respondent-father owed a duty of support to the child, but it cannot be determined from the confused state of this record the fair amount which he should be directed to pay. It is clear that the allowance of $5 is insufficient to provide adequately for the child. The record seems to suggest that the father’s excuse for past and present nonsupport is his impecunious financial condition. A full and complete new hearing should be had to determine the amount of support, during which both parties, as well as other material witnesses, should be examined to ascertain specifically in definite terms the financial condition of both parents. Appellant claims that respondent has the training and capacity to be employed steadily and gainfully, but that he refuses to accept employment or make any sustained effort to earn a sufficient income to support the child fairly and reasonably. This charge should be fully explored in compliance with the father’s duty of support under section 413 of the Family Court Act which provides that “ The father of a minor child is chargeable with the support of his child and, if possessed of sufficient means or able lo earn such means, may be required to pay for his support a fair and reasonable sum according to his means, as the court may determine.” (Italics added.) The new hearing herein ordered should be had before a different Judge than the one who made the order which is the subject of this appeal. (Appeal from order of Yates County Family Court granting petition for support of minor.) Present — Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.