Barton v. Barton

• Citation: 137 A.D.3d 723,27 N.Y.S.3d 572
• Parties: Deborah BARTON, respondent, v. Lawrence BARTON, appellant.
• Decision Date: 02 March 2016
• Court: New York Supreme Court Appellate Division

137 A.D.3d 723

27 N.Y.S.3d 572

Deborah BARTON, respondent,

v.Lawrence BARTON, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 2, 2016.

Karla S. George, New York, N.Y., for appellant.

Gordon A. Burrows, White Plains, N.Y. (Julie Hyman of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

Appeals from (1) an order of the Supreme Court, Westchester County (Janet C. Malone, J.), entered July 16, 2014, and (2) an amended order of that court entered July 22, 2014. The amended order, insofar as appealed from, granted that branch of the plaintiff's motion which was to hold the defendant in contempt for failure to comply with the parties' settlement agreement dated April 2, 2010, and denied those branches of the defendant's cross motion which were for a downward modification of his maintenance obligations and for an award of child support.

ORDERED that the appeal from the order entered July 16, 2014, is dismissed, as that order was superseded by the amended order entered July 22, 2014; and it is further,

ORDERED that the amended order is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The parties were married in 1987, and they separated in 2006. On April 2, 2010, they entered into a settlement agreement to resolve, inter alia, the issues of maintenance, child support, and equitable distribution. The settlement agreement was incorporated, but not merged, into the parties' judgment of divorce. Pursuant to the agreement, the defendant agreed to make certain payments to the plaintiff. He failed to do so, and the plaintiff moved, inter alia, to hold the defendant in contempt. The defendant cross-moved, among other things, for a downward modification of his maintenance obligations and for an award of child support. The Supreme Court, inter alia, granted the subject branch of the plaintiff's motion, and denied the subject branches of the defendant's cross motion. The defendant appeals.

A party seeking to modify a maintenance or child support award must include, in his or her moving papers, a sworn statement of net worth (see 22 NYCRR 202.16 [k][2] ). "The proper course where a party fails to include the required statement of net worth is ‘to decline to hear the motion ... or to deny it without prejudice to renewal upon compliance with the applicable requirements' " (Garcia v. Garcia, 104 A.D.3d 806, 806, 961 N.Y.S.2d 517, quoting Matter of Fischer–Holland v. Walker, 12 A.D.3d 671, 672, 784 N.Y.S.2d 890 ; see 22 NYCRR 202.16 [k][2], [5][ii] ). As the defendant failed to provide a statement of net worth in support of those branches of his cross motion which were for a downward modification of his maintenance obligation and for an award of child support, the Supreme Court providently exercised its discretion in denying those branches of the cross motion without a...