Brown v. Brown , 65 A.D.2d 936 ( 1978 )

Order unanimously reversed, without costs, and matter remitted to Erie County Family Court for further proceedings in accordance with the following memorandum: The petition, as modified orally at the hearing, only requested that respondent be ordered to pay for the support of the two children of the parties, one of whom is in college on a "fellowship”. The evidence shows that (1) petitioner’s income exceeds that of her husband, (2) the parties own their own home and also real property in California, and (3) respondent has many debts, including some incurred with petitioner. No evidence was adduced as to the respective needs of the two children, one of whom is nearly 20 years of age, and the court made no finding with respect thereto. On that record, the court erred in making an order directing respondent’s employer to withhold money from his salary for the support of petitioner and the children. On the argument counsel advised the court that a divorce action is pending between the parties. If by the time this matter reaches Family Court that action has advanced to the point of judgment and the matter of child support has been referred to Family Court, this proceeding may be consolidated with it and be decided therewith. (Appeal from order of Erie County Family Court — support.) Present — Cardamone, J. P., Dillon, Hancock, Jr., Schnepp and Witmer, JJ.