Ritchey v. Ritchey

• Decision Date: 15 March 2011
• Parties: Doreen Dey RITCHEY, respondent,v.Jeffrey Wayne RITCHEY, appellant.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 948
920 N.Y.S.2d 105
2011 N.Y. Slip Op. 01989

Doreen Dey RITCHEY, respondent,
v.
Jeffrey Wayne RITCHEY, appellant.

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

March 15, 2011.

[920 N.Y.S.2d 105]

Kevin J. Fitzgerald, Smithtown, N.Y., for appellant.Philip Sands, Garden City, N.Y., for respondent.

[920 N.Y.S.2d 106]

PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

[82 A.D.3d 948] In a matrimonial action in which the parties were divorced by judgment entered January 29, 2009, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated November 9, 2009, as denied, without a hearing, that branch of his motion which was for a downward modification of his child support obligations set forth in a stipulation of settlement, which was incorporated but not merged into the judgment of divorce.

ORDERED that the order is reversed insofar as appealed from, [82 A.D.3d 949] on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on, and thereafter a new determination of, that branch of the defendant's motion which was for a downward modification of his child support obligations.

A party seeking to modify a child support provision contained in a stipulation of settlement that has been incorporated but not merged into a judgment of divorce must demonstrate a substantial “unanticipated and unreasonable change in circumstances” ( Klein v. Klein, 74 A.D.3d 753, 753, 901 N.Y.S.2d 545; see Schlakman v. Schlakman, 38 A.D.3d 640, 833 N.Y.S.2d 121; Praeger v. Praeger, 162 A.D.2d 671, 557 N.Y.S.2d 394; Epel v. Epel, 139 A.D.2d 488, 488, 526 N.Y.S.2d 592). “Absent a prima facie demonstration of entitlement to a downward modification, the party seeking modification has no right to a hearing” ( Lewis v. Lewis, 43 A.D.3d 462, 463, 841 N.Y.S.2d 347; Miller v. Miller, 18 A.D.3d 629, 796 N.Y.S.2d 97; Mishrick v. Mishrick, 251 A.D.2d 558, 674 N.Y.S.2d 746). “A hearing is necessary on the issue of changed circumstances where the parties' affidavits disclose the existence of genuine questions of fact” ( Schnoor v. Schnoor, 189 A.D.2d 809, 810, 592 N.Y.S.2d 460; see Conway v. Conway, 79 A.D.3d 965, 912 N.Y.S.2d 700; David v. David, 54 A.D.3d 714, 864 N.Y.S.2d 76; see generally Wyser–Pratte v. Wyser–Pratte, 66 N.Y.2d 715, 716–717, 496 N.Y.S.2d 991, 487 N.E.2d 901).

“A parent's loss of employment may...