114 A.D.2d 703 | N.Y. App. Div. | 1985
Appeal from an order of the Family Court of Clinton County (Goldman, J.), entered August 16, 1984, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, and directed respondent to pay $250 per week for, inter alia, support of his wife and two children.
In a separation agreement dated October 13, 1983, respondent agreed to pay $120 per week for the support of petitioner and a total of $130 per week for the support of his two children. Less than two months later, petitioner commenced the instant proceeding, alleging that respondent had failed to make the payments pursuant to the agreement. At the hearings that followed, it was revealed that, although he had enjoyed greater earnings in the past due to his working overtime, respondent, a prison correction officer, was no Ion
A review of the record reveals that, at the time that he signed the separation agreement, thereby obligating himself to pay $250 per week in support, respondent had been working more overtime and, thus, had a larger income. In determining the amount of support to be awarded, Family Court was not, of course, bound by the terms of the separation agreement. Instead, the court was to look to the facts and circumstances of the case and determine the amount of support necessary (see, Matter of Boden v Boden, 42 NY2d 210, 212). As part of its consideration of the circumstances of the case, the court was bound to balance the needs of petitioner and the children and petitioner’s ability to contribute to the support of herself and the children with respondent’s current ability to pay (see, Muscarella v Muscarella, 93 AD2d 993, 994). Here, respondent’s weekly net income was approximately $270, although it would have been higher had respondent claimed all the Federal exemptions to which he was legally entitled. While petitioner’s income had been greatly diminished due to her medical problems, her own physician testified that the pain of
Under these circumstances, we determine that Family Court abused its discretion in ordering the $250 weekly payments, which amounted to approximately 80% of respondent’s net income, and conclude that the payments should be reduced to $175 per week (see, Bohush v Bohush, 69 AD2d 974). That amount is to include $50 per week for each child, $50 per week for petitioner, and $25 per week toward arrears, the total amount of which is to be calculated by Family Court upon remittal. We reach this determination cognizant of the fact that respondent is no longer receiving an income from the Army Reserve, a change in circumstances which formed the basis of Family Court’s November 28, 1984 order reducing respondent’s support obligation, from which respondent took no appeal.
Order modified, on the law and the facts, without costs, by reducing respondent’s weekly payments to $175 in accordance with the decision herein; matter remitted to the Family Court of Clinton County for further proceedings not inconsistent herewith; and, as so modified, affirmed. Main, J. P., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur.