McGinn v. McGinn , 400 N.Y.S.2d 145 ( 1977 )

In a matrimonial action, defendant appeals from an order of the Supreme Court, Queens County, dated October 14, 1976, which denied his motion to eliminate his obligation to make alimony payments or, in the alternative, to compel plaintiff to contribute to the education expenses of the children of the marriage. Order reversed, without costs or disbursements, and action remanded to Special Term for a hearing in accordance herewith. Defendant-appellant moved to eliminate his obligation to make alimony payments or, in the alternative, to compel plaintiff-respondent to contribute to the college education expenses of their children. Although conflicting facts were presented, Special Term denied the application on the merits without a hearing. Such denial, under these circumstances, was an improvident exercise of discretion (see Dostanko v Dostanko, 57 AD2d 885). A hearing is necessary to determine the financial capabilities of the parties in order to properly determine the motion (cf. Matter of Carter v Carter, 58 AD2d 438). Hopkins, J. P., Rabin, Shapiro and O’Connor, JJ., concur.