Summers v. Summers

¶1Defendant appeals from an order denying his motion to modify the final judgment of separation by reducing the amount of support provided for the wife and child of the parties. Order reversed, without costs, and matter remitted to Special Term for the taking of oral testimony as to appellant’s present ability to comply with the terms of the judgment. Notwithstanding that appellant’s past maneuvers to obtain a reduction in alimony do not commend him to the favor of the court, the papers are sufficient to raise an issue as to his present financial situation and ability to comply with the terms of the judgment. The issues cannot be adequately determined upon the affidavits. Adel, Acting P. J., Wenzel, Schmidt, Beldock and Murphy, JJ., concur.