Aptaker v. Aptaker , 395 N.Y.S.2d 199 ( 1977 )

Order, Supreme Court, Bronx County, entered January 5, 1977, amending final judgment of divorce so as to increase the amount to be paid by plaintiff husband to defendant, his former wife, for child support and alimony to $90 per week, is unanimously reversed, on the law, without costs and without disbursements, and the matter is remanded for an evidentiary hearing. In the interim and pending such hearing and the determination thereon, plaintiff is directed to pay $35 per week for the support of defendant and $35 per week for the support and maintenance of the infant issue of the marriage, effective on the date specified in the order appealed from, i.e., one week after service by defendant upon plaintiff, of a copy of the order appealed from. During said interim, defendant shall not be required to repay any overpayments that may have heretofore been made pursuant to the order appealed from. Plaintiff was entitled to have an evidentiary hearing to determine the amount of his support payments. The original divorce judgment provided for support payments of $35 per week for the wife and $35 per week for the child. Thereafter plaintiff left his employment in order to study for a master’s degree, and during this period the Family Court reduced the amount of his required payments to $20 per week. Plaintiff has completed his studies for his master’s degree and has now obtained employment. His former wife also has some earnings. Obviously, the support level should be fixed in the light of the changed circumstances. It would appear that the fairest interim level of support should be the one fixed in the divorce judgment at a time when plaintiff was employed. We emphasize that this is of course only an interim allowance which shall not be deemed in any way determinative of the level that should be fixed after an evidentiary hearing. Concur — Silverman, J. P., Evans, Lane and Markewich, JJ.