Walby v. Walby

— In a proceeding pursuant to Family Court Act article 4, the husband appeals, as limited by his brief, from so much of the order of the Family Court, Nassau County (Ryan, J.), entered January 25, 1985, as denied his cross petition for a downward modification of his maintenance and child support obligation.

Order reversed insofar as appealed from, without costs or *136disbursements, and matter remitted to the Family Court, Nassau County, for a hearing with respect to the cross petition.

In this proceeding, originally brought by the wife for an upward modification in maintenance and support, the Family Court reserved decision on the husband’s motion to dismiss the petition, promising that the hearing would be continued if its decision so warranted. The court subsequently denied both the petition and the cross petition, which was for a downward modification, without any further hearing, despite the fact that the husband had not yet been permitted to present his case in support of the cross petition and had rested only with respect to the petition. Since the husband is entitled to a hearing (see, Family Ct Act § 433), this was error. The denial of the cross petition must be reversed and the matter remitted to the Family Court, Nassau County, so that a hearing may take place with respect to it. Lazer, J. P., Bracken, Kooper and Spatt, JJ., concur.