Morgan v. Wright

• Decision Date: 30 December 1993
• Parties: In the Matter of Constance M. MORGAN, Respondent, v. Michael K. WRIGHT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 574

605 N.Y.S.2d 574

199 A.D.2d 931

In the Matter of Constance M. MORGAN, Respondent, v. Michael K. WRIGHT, Appellant.

Supreme Court, Appellate Division,

Third Department.

Dec. 30, 1993.

Ruberti, Girvin & Ferlazzo P.C. (Elaine M. Pers, of counsel), Albany, for appellant.

Wein, Young, Fenton & Soronen (Andrea L. Kelsey, of counsel), Guilderland, for respondent.

Before WEISS, P.J., and CREW, CARDONA, WHITE and CASEY, JJ.

WHITE, Justice.

Appeal from an order of the Family Court of Albany County (Breslin, J.), entered August 28, 1992, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 4, for modification of respondent's child support obligation.

In March 1987 the parties, who have two children, entered into a separation agreement that was subsequently incorporated but not merged into their divorce judgment entered June 4, 1987. The agreement provided, inter alia, that respondent would pay petitioner child support of $250 per month per child and would reimburse petitioner for the children's medical insurance premiums. In November 1990, petitioner filed a petition in Family Court seeking an increase in respondent's child support obligation. The petition alleged that there had been a substantial increase in respondent's financial condition and that the needs of the children had greatly increased. It further alleged that the current amount of support was insufficient to meet the needs of the children who will be attending college. The petition was subsequently supplemented with petitioner's sworn financial disclosure statement and copies of her 1990 tax returns.

At the commencement of the hearing on the petition, respondent moved to dismiss it on the ground that it failed to state a prima facie case. The Hearing Examiner denied the motion and proceeded with the hearing. The Hearing Examiner subsequently determined that there had been a change of circumstances and increased respondent's child support obligation to $1,000 per month for the one child who was residing with petitioner. Family Court denied respondent's objections to the Hearing Examiner's determination. This appeal ensued.

Respondent's sole contention on this appeal is that a hearing in this matter should not have been held and the petition should have been dismissed due to petitioner's failure to comply with Family Court Act § 451. That statute reads in pertinent part that "no hearing shall be required [on a motion to modify an order of...