Brescia v. Fitts

• Decision Date: 01 June 1981
• Citation: 439 N.Y.S.2d 407,82 A.D.2d 803
• Parties: In the Matter of Anne S. BRESCIA, Respondent-Appellant, v. Peter C. FITTS, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 407

439 N.Y.S.2d 407

82 A.D.2d 803

In the Matter of Anne S. BRESCIA, Respondent-Appellant, v. Peter C. FITTS, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

June 1, 1981.

Cunningham, Galloway & Marett, Scarsdale (John H. Galloway, III, Scarsdale, of counsel), for appellant-respondent.

McGovern, Connelly & Davidson, New Rochelle (Douglas R. Hoyt, New Rochelle, of counsel), for respondent-appellant.

Before HOPKINS, J. P., and LAZER, GIBBONS and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a support proceeding pursuant to article 4 of the Family Court Act, the appeals are from stated portions of (1) an order of the Family Court, Westchester County (BUEL, J.), dated February 22, 1979 which, inter alia, denied Peter Fitts' motions to dismiss the proceeding, (2) an order of the same court (BUEL, J.), dated May 16, 1979 which, inter alia, deemed certain issues resolved in petitioner's favor unless Fitts complies with certain discovery provisions, (3) an order of the same court (DONOVAN, J.), dated April 21, 1980 which, inter alia, modified the child support provisions of a divorce decree retroactive to January 1, 1980 and (4) a further order of the same court (DONOVAN, J.), dated July 18, 1980 as (a) denied Fitts' motion to vacate the order dated April 21, 1980 and dismiss the petition and (b) awarded petitioner counsel fees of $4,500. Petitioner cross-appeals, on the ground of inadequacy, from so much of the order dated July 18, 1980 as only partially granted her motion for counsel fees.

Appeals from orders dated February 22, 1979, and May 16, 1979 dismissed (see Family Ct. Act, § 1112), without costs or disbursements.

Orders dated July 18, 1980 and April 21, 1980 (the appeal and cross-appeal bring up for review the prior orders appealed from) reversed, on the law, without costs or disbursements, orders dated February 22, 1979 and May 16, 1979 vacated, motion by petitioner for counsel fees denied and the petition for increased support is dismissed.

Petitioner showed only (1) a significant increase in the income of Peter Fitts, the supporting spouse, and (2) a generalized claim that the children's needs have increased as they have matured and because of inflation. In Deacutis v. Cuoma, 79 A.D.2d 595, 433 N.Y.S.2d 566 we held precisely such a showing insufficient to warrant an increase in support (see, also, Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791). ^*

Petitioner also alleged...