William Orzeck Byrnes v Jan Orzeck Byrnes

Byrnes v Byrnes 2004 NY Slip Op 02333 [5 AD3d 714] March 29, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

William O. Byrnes, Appellant,
v
Jan O. Byrnes, Respondent.

—In a matrimonial action in which the parties were divorced by judgment dated July 23, 2001, the plaintiff appeals (1) from an order of the Supreme Court, Kings County (Marks, J.H.O.), dated December 9, 2002, which, after a hearing, denied that branch of his motion which was for a downward modification of his child support obligation, and (2), as limited by his brief, from so much of an order of the same court dated February 10, 2003, as, upon, in effect, reargument, clarified its prior order dated December 9, 2002, to provide, inter alia, that it was not intended to affect specific terms of the parties' stipulation of settlement dated April 2, 2001.

Ordered that the appeal from the order dated December 9, 2002, is dismissed, without costs or disbursements, as it was superseded by the order dated February 10, 2003, made upon, in effect, reargument; and it is further,

Ordered that the order dated February 10, 2003, is affirmed insofar as appealed from, without costs or disbursements.

As a party seeking a downward modification of his child support obligation, the plaintiff had the burden of establishing an unanticipated and unreasonable change of circumstance (see Matter of Boden v Boden, 42 NY2d 210, 213 [1977]; Matter of Padilla v Padilla, 308 AD2d 591 [2003]). The record supports the determination of the hearing court that the plaintiff did not meet that burden.

The plaintiff's remaining contentions are without merit. Ritter, J.P., H. Miller, Crane and Cozier, JJ., concur.