Lipow v. Lipow

Citation488 N.Y.S.2d 47,110 A.D.2d 756
PartiesWalter LIPOW, Appellant, v. Ann LIPOW, Respondent.
Decision Date15 April 1985
CourtNew York Supreme Court Appellate Division

Molinoff & McEvily, Larchmont (Raymond A. Powers, New York City, of counsel), for appellant.

Stanford G. Lotwin, P.C., New York City (Norman S. Heller, Brooklyn, of counsel), for respondent.

Before TITONE, J.P., and THOMPSON, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the plaintiff husband appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Westchester County, dated December 10, 1982, which, inter alia, (1) failed to grant him full relief from the payment of alimony and child support pursuant to a judgment of divorce; (2) adjudged him in contempt of court; (3) granted defendant wife a judgment for arrears; and (4) denied his request to appoint him as a receiver and to direct the immediate sale of the marital residence.

Order affirmed insofar as appealed from, with costs.

In order to obtain a reduction or elimination of the support and other financial provisions of the divorce judgment, the plaintiff had the burden of showing a substantial change in circumstances (see Patell v. Patell, 91 A.D.2d 1028, 458 N.Y.S.2d 617; Domestic Relations Law § 236[B][9][b]; Hickland v. Hickland, 56 A.D.2d 978, 393 N.Y.S.2d 192). The plaintiff, who had been forced to retire from a lucrative dental practice due to a neurological disability, testified that he was employed full time teaching library skills to elementary school children at a salary of approximately $7,800 per year at the time of the hearing at Special Term. Our review of the record indicates that the plaintiff was capable of earning a substantially higher income (see Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310). Indeed, Special Term rejected the plaintiff's evidence as to his earnings, and other evidence adduced by the plaintiff as to his overall financial condition, as "unbelievable".

The only change in circumstances proven by the plaintiff was that the defendant wife had become employed. Since "the ability to be self-supporting is one of many factors to be considered by the court in awarding alimony" (McClusky v. McClusky, 87 A.D.2d 973, 450 N.Y.S.2d 97; see Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310, supra; ...

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7 cases
  • Pearson v. Pearson
    • United States
    • New York Supreme Court Appellate Division
    • May 20, 1985
    ...establishing grounds for modification of support rests upon the party seeking the change (Domestic Relations Law § 236 Lipow v. Lipow, 110 A.D.2d 756, 488 N.Y.S.2d 47; Matter of Kronenberg v. Kronenberg, 101 A.D.2d 951, 475 N.Y.S.2d 638; Miklowitz v. Miklowitz, 79 A.D.2d 795, 435 N.Y.S.2d 1......
  • Allen v. Bowen
    • United States
    • New York Supreme Court Appellate Division
    • April 20, 1989
    ...chose to open his own law practice providing a lower income initially, rather than accept a job elsewhere (see, Lipow v. Lipow, 110 A.D.2d 756, 488 N.Y.S.2d 47; see also, Hickland v. Hickland, 39 N.Y.2d 1, 5-6, 382 N.Y.S.2d 475, 346 N.E.2d 243; cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.......
  • Nordhauser v. Nordhauser
    • United States
    • New York Supreme Court Appellate Division
    • May 11, 1987
    ...of divorce, the party seeking the reduction bears the burden of establishing a substantial change of circumstances (see, Lipow v. Lipow, 110 A.D.2d 756, 488 N.Y.S.2d 47; Patell v. Patell, 91 A.D.2d 1028, 1029, 458 N.Y.S.2d 617; Buchman v. Buchman, 61 A.D.2d 973, 974, 402 N.Y.S.2d 613; Hickl......
  • Vitek v. Vitek
    • United States
    • New York Supreme Court Appellate Division
    • February 28, 1991
    ...support (see, Domestic Relations Law § 236[B][9][b]; Nordhauser v. Nordhauser, 130 A.D.2d 561, 562, 515 N.Y.S.2d 501; Lipow v. Lipow, 110 A.D.2d 756, 488 N.Y.S.2d 47), and we cannot conclude that the $40 per week increase for each child was As a final matter, we decline to disturb Family Co......
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