Matter of Chrissy T. Alexander v Michael L. Conley

Matter of Alexander v Conley 2003 NY Slip Op 18702 [1 AD3d 1011] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

In the Matter of Chrissy T. Alexander, Appellant,
v
Michael L. Conley, Respondent. (Appeal No. 1.)

— Appeal from an order of Family Court, Erie County (Townsend, J.), entered March 7, 2002, which dismissed the petition insofar as it sought an upward modification of child support.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Family Court properly dismissed the petition in appeal No. 1 insofar as it sought an upward modification of child support. Petitioner's "proof failed to establish that the child's needs were not being met (see, Matter of Brescia v Fitts, 56 NY2d 132, 141 [1982]) or that an unanticipated and unreasonable change in circumstances had occurred (see, Boden v Boden, 42 NY2d 210, 213 [1977])" (Kinsella v Kinsella, 206 AD2d 889, 889-890 [1994]). We have considered petitioner's remaining contentions in appeal No. 1 and conclude that they are without merit.

We agree with petitioner, however, that the court erred in dismissing the petition in appeal No. 2 seeking enforcement of the Hearing Examiner's order, filed when petitioner's objections to the Hearing Examiner's order were pending. Contrary to the court's determination, that petition was not premature. Rather, pending the court's ruling on the objections, the Hearing Examiner's order was "in full force and effect" (Family Ct Act § 439 [e]), and petitioner was thus entitled to seek enforcement of that order (see § 453 [a]). The record contains no proof to support the contention of respondent that appeal No. 2 has been rendered moot by his compliance with the Hearing Examiner's order. We therefore reverse the order in appeal No. 2 and reinstate the petition therein, and we remit the matter to Family Court, Erie County, for further proceedings on the petition. Present—Pigott, Jr., P.J., Green, Scudder, Kehoe and Hayes, JJ.