Taylor v Taylor

Taylor v Taylor 2013 NY Slip Op 04326 Decided on June 12, 2013 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 June 12, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
MARK C. DILLON
THOMAS A. DICKERSON
CHERYL E. CHAMBERS, JJ.
2012-00464
(Index No. 488/99)

[*1]Mary C. Taylor, respondent,

v

James S. Taylor, appellant.




Horn & Horn, Huntington, N.Y. (Jeffrey S. Horn and Philip
Parlante of counsel), for appellant.
Tabat, Cohen, Blum & Yovino, LLP, West Islip, N.Y. (Robert
A. Cohen of counsel), for respondent.


DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment entered July 9, 2001, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated November 2, 2011, as granted the plaintiff's motion for reargument, and upon reargument, vacated so much of an order of the same court dated June 27, 2011, as granted that branch of the defendant's motion which sought a downward modification of his maintenance obligation, and thereupon denied that branch of the motion.

ORDERED that the order dated November 2, 2011, is affirmed insofar as appealed from, with costs.

Domestic Relations Law § 236(B)(9)(b) provides that in a matrimonial action, the court may modify the maintenance provisions of any prior order or judgment upon a showing of "a substantial change of circumstance . . . including financial hardship" (Domestic Relations Law § 236[B][9][6]). The party seeking the modification of a maintenance award has the burden of establishing the existence of a change in circumstances warranting the modification (see Rooney v Rooney, 99 AD3d 785; Matter of Parascandola v Aviles, 59 AD3d 449; Klapper v Klapper, 204 AD2d 518, 519). In determining whether there has been a substantial change in circumstances sufficient to warrant a downward modification, the change is to be measured by a comparison between the payor's financial circumstances at the time of the motion for downward modification and at the time of the divorce or, as the case may be, the time that the order of which modification is sought was made (see Rooney v Rooney, 99 AD3d at 785; Matter of Parascandola v Aviles, 59 AD3d at 449; Matter of Sannuto v Sannuto, 21 AD3d 901).

Here, the Supreme Court properly granted the plaintiff's motion for reargument (see Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654; CPLR 2221[d][2]), and, upon reargument, properly vacated its prior order granting that branch of the defendant's motion which was for a downward modification of his maintenance obligation. The defendant failed to meet his burden of establishing that his disability and retirement constituted substantial changes in [*2]circumstance warranting a downward modification of his maintenance obligation (see Matter of Sannuto v Sannuto, 21 AD3d at 901). The evidence established that the substantial lump sum pension payment the defendant received upon his retirement rendered him financially capable of meeting his maintenance obligation to the plaintiff until she reaches the age of 65.
SKELOS, J.P., DILLON, DICKERSON and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court