Corcella v. Corcella
| Citation | 645 N.Y.S.2d 828,228 A.D.2d 637 |
| Parties | Cherylanne CORCELLA, n/k/a Cherylanne Palma, Appellant-Respondent, v. Joseph G. CORCELLA, Respondent-Appellant (and a related action). |
| Decision Date | 24 June 1996 |
| Court | New York Supreme Court Appellate Division |
Schwartz & Grodofsky, Mineola (Michael Grodofsky, of counsel), for appellant-respondent.
Arthur E. Arnow, P.C., Plainview, for respondent-appellant.
Before PIZZUTO, J.P., and SANTUCCI, ALTMAN and HART, JJ.
MEMORANDUM OF THE COURT.
In a matrimonial action in which the parties were divorced pursuant to a judgment of the Supreme Court, Nassau County, entered November 5, 1987, the mother appeals from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), entered June 30, 1995, as denied her motion for an upward modification in child support and attorney's fees, and the father cross-appeals from so much of the same order as denied his application to enjoin the mother from relocating the children more than 75 miles from the former marital residence.
ORDERED that the order is affirmed, without costs or disbursements.
In 1987, the parties entered into a stipulation agreement which, inter alia, (1) granted the mother sole custody of their two children, (2) prohibited her from relocating the children more than 75 miles from the marital residence without the consent of the father or a court order, and (3) obligated the father to pay child support in the amount of $50 per week per child. The stipulation was incorporated, but not merged, into the judgment of divorce. In or about November 1994 the father moved to enjoin the mother from relocating with the children to Pennsylvania. He alleged that the mother and her new husband threatened to move so that the new husband could seek new employment there. In or about February 1995, the mother applied for an upward modification of the father's child support obligation based on the increased needs of the children and the increase in the father's earnings. The court denied both applications.
With regard to the mother's appeal, it is well settled that an upward modification in child support is appropriate "where it is determined either that the agreement was not fair and equitable when entered into, or that an unanticipated and unreasonable change in circumstances has occurred, resulting in a concomitant need", or where the children's current needs are not being met (Matter of Brescia v. Fitts, 56 N.Y.2d 132, 138, 451 N.Y.S.2d 68, 436 N.E.2d 518). Here, the mother failed to make a sufficient evidentiary showing to justify a hearing (see, Belkin v. Belkin, 193 A.D.2d 573, 574, 597 N.Y.S.2d 421; David W. v. Julia W., 158 A.D.2d 1, 557 N.Y.S.2d 314; Verrone v. Voegtle, 103 A.D.2d 1005, 478 N.Y.S.2d 206). The mother's application was admittedly based solely on the increased needs of the children and the increase in the father's earnings. No mention was made of an inability on her part to meet those increased needs. Courts generally do not modify an agreement...
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