Alfano v. Alfano
| Citation | 151 A.D.2d 530,542 N.Y.S.2d 313 |
| Parties | Thomas ALFANO, Appellant, v. Linda ALFANO, Respondent. |
| Decision Date | 12 June 1989 |
| Court | New York Supreme Court Appellate Division |
Lawrence M. Lally, Mineola (Grant M. Lally, of counsel), for appellant.
Jessel Rothman, P.C., Mineola (Linda Oliva on the brief), for respondent.
Before THOMPSON, J.P., and LAWRENCE, RUBIN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the parties were divorced by judgment entered July 16, 1987, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Velsor, J.), dated December 11, 1987, as, after a hearing, denied his motion, inter alia, for downward modification of maintenance and child support and modification of visitation, and granted the defendant wife counsel fees.
ORDERED that the order is affirmed insofar as appealed from, with costs.
"In order to justify a modification of the [maintenance] provisions, a substantial change of circumstances must be shown and the burden of proving such a change rests upon the party seeking the modification" (Matter of Kronenberg v. Kronenberg, 101 A.D.2d 951, 475 N.Y.S.2d 638; Miklowitz v. Miklowitz, 79 A.D.2d 795, 435 N.Y.S.2d 116). Where the change in a party's financial condition is brought about solely by the party's own action or inaction, downward modification of that party's maintenance and child support obligations should be denied (see, Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243; Kay v. Kay, 37 N.Y.2d 632, 376 N.Y.S.2d 443, 339 N.E.2d 143; Moore v. Moore, 115 A.D.2d 894, 496 N.Y.S.2d 583). In the instant case, the plaintiff voluntarily left a job from which he earned approximately $50,000 annually, inclusive of overtime pay, in order to take a supervisory position at a slightly higher base pay, but with virtually no chance for overtime, and thus actually decreasing his income by $15,000 annually. The Supreme Court properly found that while the plaintiff is entitled to improve his vocational lot, to permit a downward modification of support would be tantamount to requiring the plaintiff's three children to subsidize their father's financial decision (see, Moore v. Moore, supra, at 895-896, 496 N.Y.S.2d 583).
In addition, the plaintiff failed to meet his burden of demonstrating a substantial change in circumstances sufficient to justify modification of the visitation provisions of the divorce judgment (see, Sorrentino...
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