Rooney v Rooney

Rooney v Rooney 2012 NY Slip Op 06794 Decided on October 10, 2012 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 10, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2011-08317
(Index No. 9578/01)

[*1]Kathleen A. Rooney, appellant,

v

Robert R. Rooney, respondent.




Weisman Law Group, P.C., Cedarhurst, N.Y. (Rachel J. Weisman
and Bari M. Lewis of counsel), for appellant.


DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered September 9, 2009, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Raffaele, J.), dated August 25, 2011, as granted, without a hearing, that branch of the defendant's motion which was for a downward modification of his child support obligation.

ORDERED that order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for a downward modification of his child support obligation is denied.

Domestic Relations Law § 236(B)(9)(b) provides that upon the application of a party in a matrimonial action, the court may modify any prior order or judgment as to child support upon a showing of a substantial change in circumstances (see Matter of Rodriguez v Mendoza-Gonzalez, 96 AD3d 766; LiGreci v LiGreci, 87 AD3d 722, 724; D'Alesio v D'Alesio, 300 AD2d 340, 341). The party seeking the modification has the burden of establishing such a change in circumstances (see Matter of Rodriguez v Mendoza-Gonzalez, 96 AD3d at 766; D'Alesio v D'Alesio, 300 AD2d at 341; Klapper v Klapper, 204 AD2d 518, 519).

Financial hardship may constitute a substantial change in circumstances (see Domestic Relations Law § 236[B][9][b]; LiGreci v LiGreci, 87 AD3d at 724; Matter of Perrego v Perrego, 63 AD3d 1072, 1073). In determining if there is a substantial change in circumstances to justify a downward modification, the change is measured by comparing the payor's financial circumstances at the time of the motion for downward modification and at either the time of the divorce, or the time when the order sought to be modified was made (see Matter of Rodriguez v Mendoza-Gonzalez, 96 AD3d at 766; LiGreci v LiGreci, 87 AD3d at 724; Klapper v Klapper, 204 AD2d at 519).

Here, the defendant did not satisfy his prima facie burden of establishing a substantial change in circumstances, as he failed to offer any evidence demonstrating his financial status either at the time of the divorce or at the time his motion was made (see LiGreci v LiGreci, 87 AD3d at 724; Comstock v Comstock, 1 AD3d 308, 309; Klapper v Klapper, 204 AD2d at 519; see also [*2]D'Alesio v D'Alesio, 300 AD2d at 341; cf. Guinan v Hall, 265 AD2d 556). Accordingly, the Supreme Court should have denied that branch of his motion which was for a downward modification of his child support obligation.

In light of the foregoing, we need not reach the plaintiff's remaining contention.
DILLON, J.P., DICKERSON, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court