Nuesi v. Gago

• Decision Date: 27 February 2013
• Parties: In the Matter of Fernando NUESI, appellant, v. Iradi GAGO, respondent.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 897

960 N.Y.S.2d 186

2013 N.Y. Slip Op. 01273

In the Matter of Fernando NUESI, appellant,

v.Iradi GAGO, respondent.

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

Feb. 27, 2013.

Patrick R. Garcia, Brooklyn, N.Y., for appellant.

RUTH C. BALKIN, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Kings County (Gruebel, J.), dated April 12, 2012, which denied his objections to an order of the same court (Fasone, S.M.), dated December 15, 2011, which, after a hearing, denied his petition for a downward modification of his child support obligation.

ORDERED that the order dated April 12, 2012, is affirmed, without costs or disbursements.

The terms of a stipulation of settlement that is incorporated but not merged into a judgment of divorce operate as contractual obligations binding on the parties ( see Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5, 743 N.Y.S.2d 773, 770 N.E.2d 561;Merl v. Merl, 67 N.Y.2d 359, 362, 502 N.Y.S.2d 712, 493 N.E.2d 936). However, the court has the power to modify such terms upon a showing of a substantial and unanticipated change in circumstances ( see Merl v. Merl, 67 N.Y.2d at 362, 502 N.Y.S.2d 712, 493 N.E.2d 936;Martin v. Martin, 80 A.D.3d 579, 580, 914 N.Y.S.2d 285). “In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment” (Matter of McAndrew v. McAndrew, 84 A.D.3d 1381, 1382, 924 N.Y.S.2d 549;Basile v. Wiggs, 82 A.D.3d 921, 921, 920 N.Y.S.2d 103). Here, the father did not meet his burden of establishing a substantial change in circumstances that would warrant a downward modification of his child support obligation. Although he provided the Family Court with information concerning his income and other financial circumstances as of the time the petition for modification was filed, he failed to offer any evidence regarding these matters as of the time of the judgment of divorce ( see Rooney v. Rooney, 99 A.D.3d 785, 786, 951 N.Y.S.2d 682;Matter of Parascandola v. Aviles, 59 A.D.3d 449, 450, 874 N.Y.S.2d 150;Klapper v. Klapper, 204 A.D.2d 518, 519, 611 N.Y.S.2d 657).

The father's remaining contentions are without merit.