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Matter of Schmeling v. Schmeling

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 26, 1991
178 A.D.2d 999 (N.Y. App. Div. 1991)

Opinion

December 26, 1991

Appeal from the Onondaga County Family Court, Buck, J.

Present — Denman, P.J., Callahan, Balio, Lawton and Davis, JJ.


Order unanimously reversed on the law without costs and matter remitted to Onondaga County Family Court for further proceedings, and stay continued, in accordance with the following Memorandum: The Family Court and the Hearing Examiner erred in admitting two unsworn letters into evidence in support of petitioner's request for an upward modification of support. A hearing to determine a request for modification of a support order is governed by the rules of evidence (Family Ct Act § 439 [d]); thus, unsworn testimony is inadmissible (see, Richardson, Evidence § 388 [Prince 10th ed]). Unverified financial data cannot serve as a basis for a Family Court order for support (Eason v Eason, 86 A.D.2d 666; see also, Nowacki v Nowacki, 90 A.D.2d 795, 796). We therefore reverse and remit the matter to Onondaga County Family Court for a new hearing. Further, the financial provisions of the order granting a stay pending appeal are continued pending the outcome of that hearing.


Summaries of

Matter of Schmeling v. Schmeling

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 26, 1991
178 A.D.2d 999 (N.Y. App. Div. 1991)
Case details for

Matter of Schmeling v. Schmeling

Case Details

Full title:In the Matter of BETTY SCHMELING, Respondent, v. DONALD SCHMELING…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 26, 1991

Citations

178 A.D.2d 999 (N.Y. App. Div. 1991)
578 N.Y.S.2d 335

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