Citation Numbers: 50 A.D.2d 59
Judges: Lupiano, Nunez
Filed Date: 12/11/1975
Status: Precedential
Modified Date: 1/12/2022
In this child support proceeding, the petitioner
The petitioner declares that the child’s weekly needs, in addition to the private schooling expenses, amount to $343.84. In response, the respondent states that he contributes, including payment for private school expenses, $225 per week. At this juncture, the petitioner has made an initial prima facie showing that the needs of the parties’ child have increased. However, the Family Court denied the petitioner’s motion for examination before trial on the ground that no special circumstances were shown to warrant such examination. In Stern v Stern (39 AD2d 87) we held that in light of Plancher v Plancher (35 AD2d 417, affd 29 NY2d 880) an examination before trial with respect to income and means will be granted where the matrimonial action is not contested and the party sought to be examined has failed to make a showing of special circumstances warranting a denial of that type of relief. Further, in Matter of Handel v Handel (32 AD2d 946, affd 26 NY2d 853)—a child support proceeding—it was held that allegations contained in the petition that both the needs of the children and the income of the father had increased since the date of the separation agreement are suflicient predicate for the granting of an examination. The Appellate Division, Second Department, further underscored the fact that a substantial increase in the financial condition of the father is an independent ground sufficient to support an increase (Matter of Handel v Handel, supra, p 947). Although a viable separation agreement may be viewed as "a special circumstance as
Finally, it is noted that pursuant to section 250 of the Domestic Relations Law, effective September 1, 1975, "there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered.” This statutory provision, applicable both in the Supreme and Family Courts, reflects the public policy of this State in favor of disclosure. It is indicative of the Legislature’s realization that fair support awards are only possible where there is full financial disclosure. In view of the aforesaid and under the circumstances delineated in the record herein, pretrial disclosure is warranted.
Accordingly, the order of the Family Court, New York County (Caputo, J.), entered August 28, 1975, denying the petitioner mother’s application for an examination before trial of the respondent father, should be reversed on the law and the facts without costs and disbursements and the application should be granted.