Whitener v. Whitener

In a proceeding for support pursuant to article 4 of the Family Court Act, respondent-husband appeals from an order of the Family Court, Kings County, entered March 23, 1971, which denied his motion to vacate a prior support order dated July 11, 1969 or for alternative relief. Order reversed, on the law and in the exercise of discretion, without costs; and motion granted so "as to vacate the order of July 11, 1969 and grant a new trial. The questions of fact have not been considered. Appellant appeared pro se at the hearing culminating in the support order of July 11, 1969. After a rather perfunctory, but perhaps adequate, statement to appellant about his right to counsel (cf. Matter of Silvestris v. Silvestris, 24 A D 2d 247), and his acquiescence to an immediate hearing, the court below proceeded to question the parties. - In the course of the short hearing, with all of the questioning done by the court, it became apparent that there might be an issue as to whether *980the wife had abandoned appellant many years earlier and whether she might thus have forfeited her right to support by him on a means basis (see Levy v. Levy, 22 A D 2d 794; Rosa v. Rosa, 275 App. Div. 1050). This issue was not explored in depth by the court; and appellant was at no time advised of his right to cross-examine his wife and produce witnesses to rebut her assertions. Under these circumstances, we believe appellant did not get an adequate hearing and “ was not accorded his statutory right, granted him by section 433, of an ‘ opportunity to be heard and to present witnesses ’ ” (Matter of Silvestris v. Silvestris, supra, p. 250). Hopkins, Acting P. J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.