Butto v. Twietmeyer

• Decision Date: 12 November 1999
• Citation: 698 N.Y.S.2d 367
• Parties: Matter of Victoria BUTTO, f/k/a Victoria M. Twietmeyer, Petitioner-Respondent, v. Don H. TWIETMEYER, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 367

698 N.Y.S.2d 367

Matter of Victoria BUTTO, f/k/a Victoria M. Twietmeyer, Petitioner-Respondent, v. Don H. TWIETMEYER, Respondent-Appellant.

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

Nov. 12, 1999.

Francis C. Affronti, Rochester, for Respondent-Appellant.

Angelo T. Callari, for Petitioner-Respondent.

PRESENT: DENMAN, P.J., HAYES, HURLBUTT, SCUDDER and BALIO, JJ.

MEMORANDUM:

Family Court erred in denying respondent's first and second objections and in failing to grant in its entirety respondent's fifth objection to the order of the Hearing Examiner granting petitioner an upward modification of child support. Petitioner failed to establish that the original amount of support to which the parties stipulated at the time of their divorce was inadequate to meet the child's needs (see, Merl v. Merl, 67 N.Y.2d 359, 362, 502 N.Y.S.2d 712, 493 N.E.2d 936; Matter of Brescia v. Fitts, 56 N.Y.2d 132, 139-140, 451 N.Y.S.2d 68, 436 N.E.2d 518; Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791). The Hearing Examiner properly considered petitioner's loss of employment (see, Matter of Brescia v. Fitts, supra, at 141, 451 N.Y.S.2d 68, 436 N.E.2d 518). Petitioner, however, made only generalized claims that the child's needs have increased (see, Matter of Tripi v. Faiello, 195 A.D.2d 958, 600 N.Y.S.2d 876, lv. dismissed 82 N.Y.2d 803, 604 N.Y.S.2d 560, 624 N.E.2d 698) and did not "provide specific dollar amounts of the increase in the costs 'related to the [child's] basic necessities of food, shelter, clothing and medical and dental needs, as well as to the expenses associated with the [child's] varied interests and school activities' " (McArthur v. Bell [appeal No. 2], 201 A.D.2d 974, 609 N.Y.S.2d 713, lv. dismissed 83 N.Y.2d 906, 614 N.Y.S.2d 388, 637 N.E.2d 279 lv. denied 85 N.Y.2d 809, 628 N.Y.S.2d 52, 651 N.E.2d 920).

Respondent also is entitled to reimbursement for day care expenses pursuant to the oral stipulation of the parties at the time of the divorce. We modify the order by granting respondent's first and second objections, by providing that petitioner is not entitled to an upward modification of child support and by vacating the first ordering paragraph of the order of the Hearing Examiner and by granting in its entirety respondent's fifth objection and awarding respondent $1,511.29 for unreimbursed day care expenses.

Order unanimously modified on the law and as modified affirmed without...