Burgio v Burgio

[*1] Burgio v Burgio 2020 NY Slip Op 51455(U) Decided on December 2, 2020 Supreme Court, Monroe County Dollinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 2, 2020
Supreme Court, Monroe County

Carrie M. Burgio, Plaintiff,

against

Frank Burgio, Defendant.



I2016005806



Maureen Pineau, Esq.

Rochester, New York

For the Plaintiff Carrie M. Burgio

Charles A. Schiano, Sr., Esq

Rochester, New York

For the Defendant Frank Burgio
Richard A. Dollinger, J.

A divorced husband claims his former wife is living "high on the hog,"[FN1] while his own income in the last year has dipped—he claims he is no longer "bringing home the bacon" like he once did. But do those allegations justify a Court order to chop the husband's maintenance obligation?

In this instance, a former husband seeks an order to modify his maintenance obligation because he alleges a substantial change in his earning capacity. His former spouse seeks opposite relief: dismissal of the application, a judgment for unpaid maintenance and counsel fees. In the couple's judgment of divorce in 2017, the former husband was required to pay $380 every two weeks as spousal maintenance. The husband argues that his annual income was slightly more [*2]than $73,000 at the time of the divorce but dropped to $69,030 in 2019. He calculates his 2020 income using his income through the month of May, 2020 and he claims that his annual income in 2020 will only be approximately $48,000. He argues that the $25,000 reduction in his income from the date of the divorce to the date of this application constitutes a change in circumstances that justifies reduction or abolition of his maintenance obligation. He also piggybacks that argument with an allegation that he supports the couple's emancipated children and his grandchild. The former wife replies that the husband is already in arrears, owes $2,280 in maintenance arrears as of mid-September, 2020 and she seeks counsel fees for his non-payment and dismissal of his request for modification.

In New York, modification of a maintenance obligation is permissible only when compliance with the order creates an "extreme hardship" for the obligated spouse. DRL § 236(B)(6)(a); Matter of Richard K. v Deborah K., 154 AD3d 489 (1st Dept 2017); Pintus v. Pintus 104 AD2d 866, 867-868 (2d Dept 1984). The party seeking modification bears the burden of proving extreme hardship. Pintus at 868. See also DRL § 236(B)(6)(a); Soba v. Soba, 213 AD2d 472, 473, (2d Dept 1995). When assessing the merits for maintenance modification, the court must assess the cause of the hardship. See Fendsack v. Fendsack, 290 AD2d 682, 684 (2d Dept 2002). Voluntary actions to reduce income or increase expenses do not justify a modification. Di Novo v. Robinson, 250 AD2d 898, 899 (3d Dept 1998) (voluntary actions resulting in a diminished income does not warrant downward modification of a maintenance obligation).

In another context, the New York courts have held that a substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued. Matter of Mondschein v Mondschein, 175 AD3d 688 (2d Dept 2019); Matter of Guevara v Villatoro, 134 AD3d 1115 (2d Dept 2015). Importantly, in these cited cases, the applicant sought to modify a child support order under a substantial change in circumstances test. See Matter of Guevara v Villatoro, supra. The "extreme hardship" standard to modify an agreed maintenance obligation is stricter than the modification standard of a "substantial change in circumstances." Cohen v. Seletsky, 142 AD2d 111, 120 (2nd Dept. 1988).

In a close examination of the husband's affidavit here, the allegations fall short of establishing an extreme hardship. The husband complains that his ex-wife owns a more expensive house and two cars. He argues that he has voluntarily supported his emancipated children and grandchildren. However, these voluntary expenditures—while laudable and appreciated by a father and grandfather—do not equate with the "extreme hardship" necessary to justify a modification of maintenance. There is no evidence of the husband's inability to pay for his accommodations or his daily living expenses. There is no evidence of increased debt or reliance on credit cards to finance his lifestyle. Taylor v. Taylor, 83 AD3d 815 (2d Dept 2011) (modification denied when there was no evidence of any lifestyle changes occasioned by an alleged downturn in the economy). There is no evidence that continued payment of maintenance would bring the husband below the poverty line or compel him to liquidate assets or incur huge unmanageable debt. V.P. v. C.P., 32 Misc 3d 1230[A] (Sup. Ct. Nassau Cty. 2011). As one trial court noted, extreme hardship "calls for a substantial dislocation of the financial circumstances so that the litigant is nearly without resources or shelter". Id. Most of the husband's allegations [*3]here relate to his former wife: he alleges, in essence, that she does not need the money and leads an extravagant lifestyle. The fact that the former wife may live "high on the hog"—a fact hotly contested by the former wife—does not justify a modification of maintenance, which was part of the settlement of a 35-year marriage less than four years ago. The Court of Appeals held in 1982 that mere allegations of living "high on the hog" were insufficient to overturn a separation agreement and the obligations contained therein. Levine v. Levine, 56 NY2d 42 (1982).

For these reasons, the husband's application to modify the maintenance is denied. The wife is granted a judgment for $2280 for unpaid maintenance and the Court will allow the wife, upon a sworn affidavit and without a further application by motion, to seek any unpaid maintenance which has accumulated since the date of her affidavit. The Court also awards the wife $1250 in legal fees to defend this application and awards costs in the form of $45 fee for her cross-motion.

SUBMIT ORDER ON NOTICE 22 NYCRR 202.48

Dated: December 2, 2020

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:The phrase "high on the hog" is an American idiom referring to best and costliest cuts of meat from a hog. It refers to those who prosper or otherwise live very well being able to afford the choicest cut of meat, which, from a pig, is higher up on the animal above the belly such as the loin, rather than lower parts eaten by servants and the poor such as the feet, knuckles, hocks, belly, and jowls. https://figuresofspeech.fandom.com/wiki/High_on_the_Hog(visited 12/7/2020)