In the Matter of Linda Malbin v. Martz

• Decision Date: 04 October 2011
• Citation: 2011 N.Y. Slip Op. 07051,930 N.Y.S.2d 67,88 A.D.3d 715
• Parties: In the Matter of Linda MALBIN, also known as Linda Malbin Martz, appellant,v.Lawrence P. MARTZ, respondent.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 715

930 N.Y.S.2d 67

2011 N.Y. Slip Op. 07051

In the Matter of Linda MALBIN, also known as Linda Malbin Martz, appellant,

v.Lawrence P. MARTZ, respondent.

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

Oct. 4, 2011.

Robin N. Guttman, Melville, N.Y., for appellant.Gary P. Field, Huntington, N.Y., for respondent.WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the mother appeals from an order of the Family Court, Nassau County (Greenberg, J.), dated November 12, 2010, which denied her objections to an order of the same court (Watson, S.M.), dated August 30, 2010, which, after a hearing, in effect, granted the father's cross petition to modify the parties' stipulation of settlement, which was incorporated but not merged into a judgment of divorce entered July 22, 2009, obligating him to maintain health insurance coverage for the parties' children under a plan in effect at that time or to pay for a comparable plan, so as to require him to pay only the sum of $390.88 per month for a health insurance plan for the children that was acquired by the mother.

ORDERED that the order dated November 12, 2010, is reversed, on the law, without costs or disbursements, the mother's objections to the order dated August 30, 2010, are granted, the cross petition is denied, and the order dated August 30, 2010, is modified accordingly.

When a party seeks to modify the child support provision of a prior order or judgment, including an order or judgment incorporating without merging an agreement or stipulation of the parties, he or she must demonstrate a substantial change in circumstances ( see Domestic Relations Law § 236[B][9][b][2][i]; Matter of Brescia v. Fitts, 56 N.Y.2d 132, 140–141, 451 N.Y.S.2d 68, 436 N.E.2d 518; Matter of Fantel v. Stamatatos, 59 A.D.3d 717, 875 N.Y.S.2d 497; Matter of Heyward v. Goldman, 23 A.D.3d 468, 469, 805 N.Y.S.2d 628; Matter of Love v. Love, 303 A.D.2d 756, 757 N.Y.S.2d 579). “It is the burden of the moving party to establish the change in circumstance[s] warranting the modification” ( Rosen v. Rosen, 193 A.D.2d 661, 662, 598 N.Y.S.2d 13; see Matter of Prisco v. Buxbaum, 275 A.D.2d 461, 712 N.Y.S.2d 891). “In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment” ( Matter of Prisco v. Buxbaum, 275 A.D.2d at 461, 712 N.Y.S.2d 891; see Matter of Talty v. Talty, 42 A.D.3d 546, 840 N.Y.S.2d 114; Klapper v. Klapper, 204 A.D.2d 518, 611 N.Y.S.2d 657). “A parent's child support obligation is not necessarily determined by his or her current financial condition, but rather by his or her ability to provide support” ( Matter of Davis v. Davis, 13 A.D.3d 623, 624, 787 N.Y.S.2d 113; see Matter of Brunetti v. Brunetti, 22 A.D.3d 577, 577–578, 804 N.Y.S.2d 326), as well as his or her assets and earning power ( see Beard v. Beard, 300 A.D.2d 268, 269, 751 N.Y.S.2d 304; Matter of Fleischmann v. Fleischmann, 195 A.D.2d 604, 601 N.Y.S.2d 16).

Here, the Support Magistrate improperly determined that the father established a substantial change in circumstances sufficient to modify a stipulation of settlement which was incorporated but not merged into a judgment of divorce entered July 22, 2009, obligating him to maintain health insurance coverage...