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EILEEN FENNIE v. JAMES FENNIE (06/19/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


June 19, 1969

EILEEN FENNIE, APPELLANT,
v.
JAMES FENNIE, RESPONDENT

Appeal from Orders of Erie County Family Court, in action to enforce support order.

Goldman, P. J., Marsh, Witmer, Moule and Bastow, JJ.

Orders unanimously reversed, without costs, and a new hearing granted in accordance with the following Memorandum: Petitioner's application should be remitted to Family Court for a new hearing at which proof may be adduced by competent evidence establishing the needs of the wife and children and the means of the husband including his income, expenses and new obligations consequent upon a subsequent remarriage. The probation report upon which the court at least in part based its decision was not received in evidence, could not be considered competent proof by the court, and is of course no part of the record on appeal. (See Gutillo v. Gutillo, 30 A.D.2d 484, 486.) Any new determination made should state the essential facts upon which it is based in accordance with section 165 of the Family Court Act and CPLR 4213 (subd. [b]).

19690619

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