Epel v. Epel
| Decision Date | 04 April 1988 |
| Citation | 526 N.Y.S.2d 592,139 A.D.2d 488 |
| Parties | Linda EPEL, Appellant, v. Mario EPEL, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Katherine Levitan, Mineola (Glenna B. Rubin, on the brief), for appellant.
Joel S. Kaplan, Garden City, for respondent.
Before THOMPSON, J.P., and BROWN, WEINSTEIN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the parties were divorced by judgment of the Supreme Court, Nassau County, dated March 13, 1985, the plaintiff appeals, as limited by her notice of appeal and brief, from stated portions of an order of the Supreme Court, Nassau County (Christ, J.), dated August 27, 1986, which, inter alia, granted that branch of the defendant husband's cross motion which was for a downward modification of his child support payments.
ORDERED that the order is modified, as a matter of discretion, by deleting the provision thereof which granted that branch of the defendant husband's cross motion which was for downward modification of his child support payments and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
Where, as here, support obligations have been established by a contractual agreement between the parties which was incorporated but not merged into the parties' divorce judgment, modification with respect to child support provisions is limited; "absent a showing of an unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed" ( see, Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791). Our review of the record in the instant case reveals that the defendant failed to make such a showing, and therefore it was an abuse of discretion for the trial court to reduce his child support obligation from $900 per month to $500 per month. Initially, we find that the record belies the defendant's claim that he has suffered a sudden, adverse change in his financial circumstances. In any event, the evidence indicates that any adverse changes which may have occurred in the defendant's financial situation were attributable to either the establishment of his new business or the purchase of his cooperative apartment, and were clearly anticipated at the time of entry of the parties' divorce judgment. When the defendant originally agreed in November of 1984 to pay $900 per...
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