Lee v Lee

Lee v Lee 2009 NY Slip Op 09529 [68 AD3d 622] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Donald Lee, Respondent,
v
Elizabeth Lee, Appellant.

—[*1] Law Offices of Clifford J. Petroske, P.C., Bohemia (Clifford J. Petroske of counsel), for appellant.

Ali, Pappas & Cox, P.C., Syracuse (P. Douglas Dodd of counsel), for respondent.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about September 3, 2008, which, insofar as appealed from, denied respondent wife's objections to the Support Magistrate's order that, inter alia, granted petitioner husband's petition for a downward modification of his spousal maintenance obligation and denied respondent's application for attorney's fees, unanimously modified, on the law and the facts, to grant respondent's objection pertaining to the downward modification of spousal maintenance, the payment schedule of $5,800 per month reinstated and otherwise affirmed, without costs.

The downward modification of spousal maintenance was improperly granted as the record does not support the finding that petitioner demonstrated a "substantial change in financial circumstances" as required in the parties' stipulation with respect to maintenance, which was merged into the judgment of divorce. Indeed, petitioner's current overall income is greater than his income at the time of the divorce and he continues to maintain a lavish lifestyle (see McCarthy v McCarthy, 11 AD3d 402 [2004], lv dismissed in part and denied in part 4 NY3d 793 [2005]; Dunnan v Dunnan, 293 AD2d 345 [2002]). Nor does respondent's postdivorce receipt of social security benefits and payments from petitioner's pension constitute a substantial change in financial circumstances sufficient to have warranted the downward modification (see Block v Block, 277 AD2d 87 [2000]; Wells v Wells, 242 AD2d 934 [1997]). [*2]

The denial of respondent's application for counsel fees was a provident exercise of discretion under the circumstances (see Matter of Lawrence v Lawrence, 187 AD2d 995 [1992]). Concur—Mazzarelli, J.P., Nardelli, Catterson, DeGrasse and RomÁn, JJ.