MATTER OF SCHMELING v. SCHMELING


178 A.D.2d 999 (1991)

In the Matter of Betty Schmeling, Respondent, v. Donald Schmeling, Appellant

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 26, 1991


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.


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