Ligreci v. Ligreci

• Decision Date: 30 August 2011
• Citation: 929 N.Y.S.2d 253,2011 N.Y. Slip Op. 06371,87 A.D.3d 722
• Parties: Kenneth LiGRECI, respondent,v.Teresa LiGRECI, appellant.
• Court: New York Supreme Court — Appellate Division

87 A.D.3d 722

929 N.Y.S.2d 253

2011 N.Y. Slip Op. 06371

Kenneth LiGRECI, respondent,

v.Teresa LiGRECI, appellant.

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

Aug. 30, 2011.

Adam Matteson, Lowville, N.Y., for appellant.Kenneth LiGreci, Staten Island, N.Y., respondent pro se.PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

In a matrimonial action in which the parties were divorced by judgment dated October 8, 2002, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated October 9, 2009, as granted the plaintiff's motion to terminate his child support and maintenance obligations, and to cancel all arrears of child support and maintenance.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff's motion which was to terminate his maintenance obligation, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting those branches of the plaintiff's motion which were to cancel all child support and maintenance arrears; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, for a hearing on the issues of child support and maintenance arrears.

The parties were divorced by judgment dated October 8, 2002. Pursuant to that judgment, the Supreme Court awarded the defendant former wife child support for the parties' three children in the sum of $6,000 per month, and maintenance in the sum of $4,000 per month.

In July 2007 the plaintiff former husband moved to terminate his child support obligations, as the parties' two daughters had turned 21, and their son was now living with him. He also moved to terminate his maintenance obligation, claiming that he could not afford to pay maintenance because he was disabled, unemployed, unable to work, and living on public assistance and money from family members. The plaintiff claimed that he had paid the defendant the sum of $4,000 per month, borrowed from family members, which included payments for some items not included in the judgment of divorce, such as monthly payments for health insurance. The defendant claimed that the plaintiff was actually working for and receiving money from family businesses. She further alleged that the plaintiff was in arrears for child support and maintenance.

The Supreme Court granted those branches of the plaintiff's motion which were to terminate his child support and maintenance obligations, and to cancel all support and maintenance arrears. The Supreme Court credited the plaintiff with payments for items not included in the judgment of divorce, and found that the plaintiff was disabled and unable to work. The Supreme Court further found that the plaintiff's income was below the poverty income guidelines as reported by the federal Department of Health and Human Services, and that he was living on public assistance, and therefore he was unable to make support or maintenance payments, or to pay arrears.

The Supreme Court erred in awarding the plaintiff credits for payments he made for health insurance, cell phones, and an automobile. The plaintiff's voluntary payments for the benefit of the children, not made pursuant to a court order, may not be credited against the amounts due pursuant to the judgment of divorce ( see Horne v. Horne, 22 N.Y.2d 219, 224, 292 N.Y.S.2d 411, 239 N.E.2d 348; Matter of Hang Kwok v. Xiao Yan Zhang, 35 A.D.3d 467, 824 N.Y.S.2d 727; Matter of Finell v. Finell, 25 A.D.3d 703, 811 N.Y.S.2d 733; Matter of Gleason v. Gleason, 247 A.D.2d 384, 668 N.Y.S.2d 657; Lefkow v. Lefkow, 188 A.D.2d 589, 591 N.Y.S.2d 488; Soltow v. Soltow, 47 A.D.2d 652, 364 N.Y.S.2d 28). The plaintiff had no right to have the sum of payments he made voluntarily deducted from the sums he was obligated to pay ( see Horne v. Horne, 22 N.Y.2d at 224, 292 N.Y.S.2d 411, 239 N.E.2d 348).

The Supreme Court properly found that the plaintiff's child support obligation had terminated. The parties' daughters became emancipated on January 22, 2006, and January 23, 2007, respectively, and the parties' son began to live with the plaintiff in December 2008. The Supreme Court correctly determined that no support could be calculated for each child beyond those dates ( see Family Ct. Act § 413[1][a]; Matter of Forte v. Forte, 304 A.D.2d 577, 758 N.Y.S.2d 130; Matter of Weis v. Castagna, 292 A.D.2d 625, 739 N.Y.S.2d 620).

However, the Supreme Court erred in terminating the plaintiff's maintenance obligation. The plaintiff failed to show that he was entitled to such termination. Where a party seeks to modify a maintenance obligation set forth in a judgment of divorce, that party must show a substantial change in circumstances warranting such a modification. Such a change may include financial hardship ( see Domestic Relations Law § 236[B][9][b][1]; Matter of Perrego v. Perrego, 63 A.D.3d 1072, 884 N.Y.S.2d 70; Zolan v. Zolan, 2 A.D.3d 632, 768 N.Y.S.2d 336; Sass v. Sass, 276 A.D.2d 42, 716 N.Y.S.2d 686; Matter of Prisco v. Buxbaum, 275 A.D.2d 461, 712 N.Y.S.2d 891; Sitler v. Sitler, 266 A.D.2d 202, 697 N.Y.S.2d 316). In determining if there is a substantial change in circumstances to justify a downward modification, the change is measured by comparing the payor's financial circumstances at the time of the motion for downward modification and at the time of the divorce, or the time when the order sought to be modified was made ( see Matter of Perrego v. Perrego, 63 A.D.3d 1072, 884 N.Y.S.2d 70; Matter of Prisco v. Buxbaum, 275 A.D.2d 461, 712 N.Y.S.2d 891; Matter of Sannuto v. Sannuto, 21 A.D.3d 901, 800 N.Y.S.2d 601; Klapper v. Klapper, 204 A.D.2d 518, 611 N.Y.S.2d 657).

The plaintiff failed to establish that there had been a reduction in his income since the judgment of divorce was issued. The plaintiff himself claims that his income was reduced from his prior income as of September 11, 2001, 13 months before the entry of the judgment of divorce ( see Matter of Fein v. Gilchrist, 23 A.D.3d 558, 807 N.Y.S.2d 600; see also Matter of Mazzola v. Lee, 76 A.D.3d 531, 906 N.Y.S.2d 83). In fact, the plaintiff's income had increased, at least for a time after the judgment of divorce was issued on October 8, 2002.

Furthermore, the letters from the plaintiff's physicians did not establish a change of circumstances since the October 8, 2002, judgment of divorce. According to these physicians, the plaintiff's ailments were a result of his work at the World Trade Center site on and after September 11, 2001. However, none of the physicians stated at what point the plaintiff became totally disabled and unable to work. Thus, the letters do not establish a change in his condition since the judgment of divorce was issued.

Since the plaintiff failed to show that his financial and/or medical circumstances changed for the worse after the judgment of divorce was issued, and his income increased at least for a time afterward, the...