The defendant contends the Court committed error in refusing to consider his affidavit filed “3/10/67” bearing on his ability to pay alimony. When the hearing was held on March 4/ the Court announced the plaintiff was entitled to relief and continued the hearing for one week for counsel to reach an agreement, if possible, as to the amount of temporary payments. The Court’s order recited: “. . . (T)he matter will be left open until 10:00 o’clock a.m., . . . March 11, 1967.” At that time the defendant had not filed answer. The attorneys were unable to agree. The defendant, on the day before the hearing, filed an affidavit apparently disclosing matters relating to his ability to pay alimony and support. The Court refused to consider the affidavit on the ground it was not before it on March 4, notwithstanding the Court’s order that the matter should remain open until March 11.
In preparing the case on appeal, the defendant included his affidavit which the Court refused to consider. The plaintiff filed exception to the case on appeal and objection to the inclusion of the affidavit. In settling the case on appeal, the Court deleted the affidavit and the record comes here without it.
At the time of the hearing on March 4, the defendant had not answered. His time to answer had not expired. The order of that date left the matter “open” until March 11. On March 10, the defendant, still with time to answer, filed his affidavit which the Court refused to consider and which the Court ordered stricken from the case on appeal. This Court is denied the opportunity to consider the affidavit on the question whether the defendant is able to meet the payments required by the Court’s order. We do not know what bearing it may have on that material question. The defendant is entitled to be heard on the issue of his ability to pay and it does not appear that he has been fully heard. In this state of the record, it becomes necessary for us to vacate the order awarding compensation and to remand the cause to the Superior Court for further hearing and the fixing of payments in accordance with the needs of the plaintiff and her children and the ability of the defendant to meet those needs.
The order from which this appeal is taken is vacated and the cause is remanded for further hearing.
Remanded with directions.