Minyard v. Minyard , 21 A.D.2d 896 ( 1964 )

In an action by a wife for divorce, in which a judgment had been entered in her favor, the defendant appeals from an order of the Supreme Court, Dutchess County, dated May 22, 1963, which denied his motion to modify the judgment so as to reduce the amount awarded for the permanent support of their son. The defendant sought reduction to an amount below that to which the plaintiff had voluntarily agreed after his remarriage. Order reversed, without costs, and matter remitted to the Special Term for the purpose of: (1) holding a hearing as to whether there has been such a change in the circumstances of the parties since the entry of the judgment as to warrant the relief sought; and (2) the making of a determination de novo upon all the proof adduced upon such hearing. In our opinion, the record discloses issues of fact as to the alleged changes in the circumstances of the respective parties; such issues cannot be adequately determined without a hearing. Kleinfeld, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.