Opinion
May 9, 1977
In a matrimonial action, defendant appeals from so much of an order of the Supreme Court, Queens County, dated January 19, 1976, as, after a hearing, denied her motion for an upward modification of child support. Order reversed insofar as appealed from, on the facts, with costs, motion granted, and the plaintiff husband is directed to pay $70 per week for child support, retroactive to December 1, 1975, the date of the renewed hearing. A determination that the plaintiff-respondent cannot afford to pay more than $35 per week to support his daughter of his first marriage is against the weight of the credible evidence. The testimony of the plaintiff stretches credulity; he claims that he, an experienced businessman, working as he is for a thriving wholly owned family business, receives today the same $10,000 salary which he has been paid since 1969. Equally suspect is his testimony that he sold his stock in that family business to his sister in the very year in which, by sheer coincidence, the suit for separation was commenced. Plaintiff further maintains that he was forced to leave a business he operated from 1971 to 1973 because of harassment of the customers by defendant appellant's attorneys. Peculiarly, that business, including $6,000 worth of new machinery, was given to George Gatto, a close personal friend of the plaintiff, and is still today a functioning enterprise. From these and other circumstances, we infer an obvious effort by plaintiff to avoid paying support to the extent that he is able and that is needed by his daughter (cf. Kramer v Kramer, 248 App. Div. 781; Diana L. v State of New York, 70 Misc.2d 660, 661; Anonymous v Anonymous, 22 N.Y.S.2d 432). Cohalan, J.P., Hawkins, Mollen and O'Connor, JJ., concur.