Matter of Fantel v. Stamatatos
| Decision Date | 24 February 2009 |
| Docket Number | 2008-05461. |
| Citation | 875 N.Y.S.2d 497,2009 NY Slip Op 01478,59 A.D.3d 717 |
| Parties | In the Matter of ROBERT S. FANTEL, Respondent, v. ELPIDA I. STAMATATOS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the notice of appeal from the order dated April 7, 2008 is deemed a premature notice of appeal from the order dated May 12, 2008 (see CPLR 5520 [c]); and it is further,
Ordered that the order dated May 12, 2008 is reversed, on the law, with costs, the mother's objections are sustained, the order dated April 7, 2008 is vacated, and the petition is denied.
"When a party seeks to modify the child support provision of a prior order or judgment, he or she must demonstrate a `substantial change in circumstance'" (Matter of Heyward v Goldman, 23 AD3d 468, 469 [2005], quoting Domestic Relations Law § 236 [B] [9] [b]; see Matter of Talty v Talty, 42 AD3d 546, 547 [2007]; Matter of Brescia v Fitts, 56 NY2d 132, 140-141 [1982]; Matter of Love v Love, 303 AD2d 756 [2003]; Rosen v Rosen, 193 AD2d 661, 662 [1993]). In determining whether there has been a change in circumstances warranting a modification of child support, the court must consider several factors including "the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children" (Shedd v Shedd, 277 AD2d 917, 918 [2000]; see Matter of Heyward v Goldman, 23 AD3d 468 [2005]). "It is the burden of the moving party to establish the change in circumstance warranting the modification" (Rosen v Rosen, 193 AD2d at 662).
Here, the father sought to modify the child support provision of the judgment of divorce to require the mother to pay child support, primarily based upon the fact that the parties' daughter, of whom the mother had custody, was emancipated, and the parties' son, of whom the...
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