Augstein v. Augstein

Order, Supreme Court, New York County, entered April 23, 1975, granting defendant’s application to submit the answers to his interrogatories and cross interrogatories to a special referee to be used to determine defendant’s claim of adverse change of circumstances affecting his ability to pay temporary alimony and child support, unanimously affirmed, without costs and disbursements. In November, 1972, the defendant, then 49 years of age, suffered a massive stroke resulting in permanent neurological damage. Factual issues raised by defendant’s contention of changed circumstances affecting his ability to pay temporary alimony and child support were heretofore referred to a referee to hear and report. Medical evidence is advanced that his condition would be markedly aggravated if he underwent the stress of oral examination at the hearing before the referee on the disputed issues of fact. Under these circumstances, Special Term (in the interest of justice) permitted the utilization of interrogatories and cross interrogatories in lieu of defendant’s oral testimony at the hearing. This permission was coupled with the caveat that the "Referee shall ascribe such weight to these responses as, under the circumstances, he finds warranted. The Court shall do likewise upon review of the Referee’s ultimate report”. The burden of proof with respect to changed financial circumstances rests herein on the defendant. This fact, coupled with the declared intent by the court to carefully scrutinize the defendant’s answers, impels the conclusion that the method selected by Special Term is an apt avenue for the introduction of defendant’s testimony under the special circumstances herein. Concur—Kupferman, J. P., Murphy, Lupiano, Capozzoli and Lane, JJ.