Leo v. Leo

• Decision Date: 06 February 2015
• Parties: Ronald P. LEO, Plaintiff–Appellant, v. Pamela S. LEO, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 1319

3 N.Y.S.3d 232

2015 N.Y. Slip Op. 01026

Ronald P. LEO, Plaintiff–Appellant,

v.Pamela S. LEO, Defendant–Respondent.

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

Feb. 6, 2015

Affirmed. Dadd, Nelson, Wilkinson & Wujcik, Attica (Jennifer M. Wilkinson of Counsel), for Plaintiff–Appellant.

William R. Hites, Buffalo, for Defendant–Respondent.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI AND WHALEN, JJ.MEMORANDUM:

Pursuant to the parties' 1998 separation agreement, which was incorporated but not merged into the judgment of divorce, plaintiff, inter alia, agreed to pay defendant $1,666.66 in maintenance per month and a distributive award of $1,058.80 per month; to maintain a $250,000 life insurance policy for the benefit of defendant; and to provide defendant with health and dental insurance. The monthly distributive award was subsequently modified to $700 per month by court order. In September 2011, plaintiff moved to terminate or reduce his obligations to defendant based on financial hardship, and, in May 2012, defendant cross-moved for enforcement of plaintiff's obligations under the separation agreement. Supreme Court denied plaintiff's motion and granted defendant's cross motion. We affirm.

Contrary to the parties' contentions with respect to the burden of proof to be applied when a party seeks to reduce the amount of maintenance set forth in a separation agreement that has been incorporated but not merged into a judgment of divorce, that party has the burden of establishing “extreme hardship” (Domestic Relations Law § 236[B][9][b][1]; see Marrano v. Marrano, 23 A.D.3d 1104, 1105, 804 N.Y.S.2d 215; Mishrick v. Mishrick, 251 A.D.2d 558, 558, 674 N.Y.S.2d 746). Under the particular circumstances presented here, and giving due deference to the court's credibility determinations ( see generally Quarty v. Quarty, 96 A.D.3d 1274, 1277, 948 N.Y.S.2d 130), we perceive no error in the court's denial of plaintiff's motion to modify his obligations under the separation agreement ( see Barden v. Barden, 245 A.D.2d 695, 696, 664 N.Y.S.2d 859; cf. Marrano, 23 A.D.3d at 1105, 804 N.Y.S.2d 215; Malaga v. Malaga, 17 A.D.3d 642, 643, 794 N.Y.S.2d 99).

We further conclude that plaintiff “knowingly, consciously and voluntarily disregarded the obligation under a lawful court order” (domestic relatioNs law § 244), AND THAT THE COurt therefore did not err in finding that plaintiff's failure to make the required...