McArthur v. Bell, 2

• Decision Date: 04 February 1994
• Docket Number: No. 2,2
• Citation: 201 A.D.2d 974,609 N.Y.S.2d 713
• Parties: Jeffrey C. McARTHUR, Appellant, v. Nancy BELL, f/k/a Nancy McArthur, Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 713

609 N.Y.S.2d 713

201 A.D.2d 974

Jeffrey C. McARTHUR, Appellant, v. Nancy BELL, f/k/a Nancy McArthur, Respondent. Appeal No. 2.

Supreme Court, Appellate Division Fourth Department.

Feb. 4, 1994.

Charles E. Von Schmidt, Hauppauge, for appellant.

J. Gary Waldvogel, Hauppauge, for respondent.

Before DENMAN, P.J., and GREEN, BALIO, FALLON and DAVIS, JJ.

MEMORANDUM:

Plaintiff contends that defendant failed to sustain her burden of proving a change of circumstances warranting an increase in child support in the best interests of the children (see, Matter of Brescia v. Fitts, 56 N.Y.2d 132, 451 N.Y.S.2d 68, 436 N.E.2d 518; Matter of Contino v. Ryan, 193 A.D.2d 1057, 598 N.Y.S.2d 619; Wirth v. Wirth, 126 A.D.2d 636, 511 N.Y.S.2d 73). We agree. The party seeking upward modification of child support must introduce evidence tending to show "that the combination of her own income and the payments contributed by respondent does not adequately meet the children's needs" (Matter of Brescia v. Fitts, supra, 56 N.Y.2d at 140, 451 N.Y.S.2d 68, 436 N.E.2d 518). Generalized claims that the children's needs have increased as the children grow older or because of inflation do not warrant an upward modification of support (see, Matter of Webb v. Webb, 197 A.D.2d 847, 602 N.Y.S.2d 275; Tripi v. Faiello, 195 A.D.2d 958, 600 N.Y.S.2d 876, lv. dismissed, 82 N.Y.2d 803, 604 N.Y.S.2d 560, 624 N.E.2d 698; Matter of Miller v. Davis, 176 A.D.2d 945, 575 N.Y.S.2d 681). The party seeking upward modification must provide specific dollar amounts of the increase in the cost "related to the [children's] basic necessities of food, shelter, clothing and medical and dental needs, as well as to the expenses associated with the [children's] varied interests and school activities" (Matter of Miller v. Davis, supra ). Defendant failed to sustain her burden. She testified that the only need of the children that was not being met was the younger child's enrollment in a gifted and talented program. There was no evidence that the other expenses of the children, all of which are attributable to the "normal growth of the children" (Matter of Hargrove v. Hargrove, 196 A.D.2d 541, 601 N.Y.S.2d 157), were not being met.

We remit the matter for an adversarial hearing on the issue of attorney's fees. "An award of counsel fees must take into consideration a party's ability to pay, the nature and extent of those services which are required to deal with the marital dispute and the reasonableness of counsel's performance under the circumstances" (McCann v. Guterl, 100 A.D.2d 577, 473 N.Y.S.2d 511). Where a party opposes an...