Winkler v. Winkler 99 A.D.2d 468

In a matrimonial action, defendant husband appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered February 17, 1983, which granted plaintiff wife’s motion for a wage deduction order, pursuant to section 49-b of the Personal Property Law, and for counsel fees. Order reversed, without costs or disbursements, and matter remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith. Pursuant to the separation agreement between the parties incorporated in the judgment of divorce, defendant’s support obligation was dependent on his income and the number of children living with plaintiff. In light of the conflicting allegations with regard to the financial circumstances of the parties, and the unchallenged assertion by defendant that only one of the three children of the marriage currently resides with plaintiff, it was error to resolve the matter without first conducting an evidentiary hearing to determine the correct amount of defendant’s support obligation. Thompson, J. P., Bracken, Rubin and Boyers, JJ., concur.