Boice v. Durant

• Decision Date: 12 July 1996
• Citation: 229 A.D.2d 1004,645 N.Y.S.2d 197
• Parties: Matter of Wendy J. BOICE, Respondent, v. Jeffrey L. DURANT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 197

645 N.Y.S.2d 197

229 A.D.2d 1004

Matter of Wendy J. BOICE, Respondent, v. Jeffrey L. DURANT, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 12, 1996.

Lawrence Katzman, Watertown, for appellant.

Lisa Weldon, Watertown, for respondent.

Before PINE, J.P., and FALLON, DOERR, DAVIS and BOEHM, JJ.

MEMORANDUM.

The parties executed a separation agreement in 1986 providing that respondent father, the non-custodial parent, would pay petitioner $420 per month in child support. The agreement was incorporated but not merged into the divorce judgment, which was entered in 1987. Petitioner commenced this proceeding in 1994 for enforcement of the child support obligation, and respondent cross-petitioned for modification of support based on a change in circumstances. The Hearing Examiner dismissed respondent's cross petition, and Family Court denied respondent's objections thereto. We affirm.

Respondent testified that he earned $6 per hour and about $150 per week in 1986 when he signed the separation agreement. That amounts to an annual gross income of $7,800. Respondent did not submit his 1986 tax return or any other proof to corroborate his testimony regarding his former income. In support of his cross petition, respondent submitted a 1993 joint tax return showing an adjusted gross income of $7,974, half of which respondent contends was earned by his present wife, a partner in his dairy farming business. As the Hearing Examiner found, however, respondent's adjusted gross income is not indicative of respondent's standard of living. Respondent paid the home mortgage, taxes and utility bills as farm expenses, which were deducted from gross income on his tax return. He also deducted $33,701 for depreciation of equipment that is not identified in the record. He and his present wife fully support her two children, who live with them, and the couple had $22,000 available for the family in 1993 after farm expenses had been paid.

We conclude that respondent failed to establish a substantial change in circumstances to warrant a downward modification of child support (see, Domestic Relations Law § 236[B][9][b]; Matter of Pancaldo v. Pancaldo, 214 A.D.2d 879, 625 N.Y.S.2d 683; Stock v. Stock, 202 A.D.2d 914, 915, 609 N.Y.S.2d 431). Respondent's income has not changed significantly since the parties entered into the separation agreement in 1986 (see, Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791). Beca...