Kronenberg v. Kronenberg

• Decision Date: 17 May 1984
• Citation: 475 N.Y.S.2d 638,101 A.D.2d 951
• Parties: In the Matter of Dolores KRONENBERG, Appellant, v. William KRONENBERG, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 638

475 N.Y.S.2d 638

101 A.D.2d 951

In the Matter of Dolores KRONENBERG, Appellant, v. William KRONENBERG, Respondent.

Supreme Court, Appellate Division,

Third Department.

May 17, 1984.

Kent D. Anderson, Kingston, for appellant.

H. Clark Bell, Kingston, for respondent.

KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Family Court of Ulster County, entered June 13, 1983, which granted respondent's application for a reduction of alimony payable to petitioner.

Petitioner appeals from an order of Family Court which granted respondent's cross petition and modified downward from $100 per week to $50 per week the alimony payable by respondent to petitioner. Family Court appears to have rendered decisions regarding the amount of alimony after the original order which fixed alimony, dated May 19, 1980, and before the order appealed from, but no signed or entered orders reflecting these decisions are found in the record. On this appeal, then, we will subscribe to the position of the parties in Family Court and before us and limit our consideration to whether Family Court properly found a change of circumstances from the time of the original May 19, 1980 order sufficient to warrant a reduction in alimony payable by respondent to petitioner pursuant to the stipulation of the parties, which was incorporated but not merged in said order.

In order to justify a modification of the alimony provisions, a substantial change of circumstances must be shown and the burden of proving such a change rests upon the party seeking the modification (see, e.g., Miklowitz v. Miklowitz, 79 A.D.2d 795, 435 N.Y.S.2d 116, mot. for lv. to app. den. 53 N.Y.2d 604, 439 N.Y.S.2d 1027, 421 N.E.2d 854; Hickland v. Hickland, 56 A.D.2d 978, 979, 393 N.Y.S.2d 192). It is also well settled that precedent has little value and the decision to reduce alimony rests on the particular facts of a case and in the discretion of the court (see, e.g., Butler v. Butler, 50 A.D.2d 776, 377 N.Y.S.2d 75; Le Duc v. Le Duc, 14 A.D.2d 642, 218 N.Y.S.2d 173). Family Court's modification of the alimony provision was predicated upon findings of respondent's decreased income and changed personal relationships and petitioner's increased income. Our review of the record leads us to conclude that respondent's decreased income and changed personal relationships do not warrant downward modification of alimony, and Family Court's adjustment of alimony must be modified accordingly.

Respondent's income decreased by about $4,500 when he failed to seek re-election as Town of Woodstock Councilman and when he earned less than previously or nothing from various real estate activities. Although it is plausible that, as respondent explains, the bad publicity from respondent's divorce and the poor economic climate of 1981 and 1982 were the reasons for respondent's failure to seek re-election and the loss of real estate income, the record, to which we are bound, is devoid of any explanation in this regard. Thus, respondent has failed to show that his loss of income was unavoidable. "Where the reversal in a spouse's financial condition is brought about by the spouse's own actions or inactions, the court should not grant a downward modification" (Matter of Doscher v. Doscher, 80 A.D.2d 945, 438 N.Y.S.2d 28, affd. ...