Rooney v. Rooney

• Citation: 951 N.Y.S.2d 682,99 A.D.3d 785,2012 N.Y. Slip Op. 06794
• Parties: Kathleen A. ROONEY, appellant, v. Robert R. ROONEY, respondent.
• Decision Date: 10 October 2012
• Court: New York Supreme Court Appellate Division

99 A.D.3d 785
951 N.Y.S.2d 682
2012 N.Y. Slip Op. 06794

Kathleen A. ROONEY, appellant,
v.
Robert R. ROONEY, respondent.

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

Oct. 10, 2012.

Weisman Law Group, P.C., Cedarhurst, N.Y. (Rachel J. Weisman and Bari M. Lewis of counsel), for appellant.

[99 A.D.3d 785]In a matrimonial action in which the parties were divorced by judgment entered September 9, 2009, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Raffaele, J.), dated August 25, 2011, as granted, without a hearing, that branch of the defendant's motion which was for a downward modification of his child support obligation.

ORDERED that order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was for a downward modification of his child support obligation is denied.

Domestic Relations Law § 236(B)(9)(b) provides that upon the application of a party in a matrimonial action, the court may modify any prior order or judgment as to child support upon a showing of a substantial change in circumstances ( see Matter of Rodriguez v. Mendoza–Gonzalez, 96 A.D.3d 766, 946 N.Y.S.2d 204;

[951 N.Y.S.2d 683]

LiGreci v. LiGreci, 87 A.D.3d 722, 724, 929 N.Y.S.2d 253;D'Alesio v. D'Alesio, 300 A.D.2d 340, 341, 751 N.Y.S.2d 774). The party seeking the modification has the burden of establishing such a change in circumstances ( see Matter of Rodriguez v. Mendoza–Gonzalez, 96 A.D.3d at 766, 946 N.Y.S.2d 204;D'Alesio v. D'Alesio, 300 A.D.2d at 341, 751 N.Y.S.2d 774;Klapper v. Klapper, 204 A.D.2d 518, 519, 611 N.Y.S.2d 657).

Financial hardship may constitute a substantial change in circumstances ( see Domestic Relations Law § 236[B][9][b]; LiGreci v. LiGreci, 87 A.D.3d at 724, 929 N.Y.S.2d 253;Matter of Perrego v. Perrego, 63 A.D.3d 1072, 1073, 884 N.Y.S.2d 70). In determining if there is a substantial change in circumstances to justify a downward modification, the change is measured by comparing the payor's financial circumstances at the time of the motion for downward modification and at either the time of the divorce, or the time when the order sought to be modified was made ( see Matter of Rodriguez v. Mendoza–Gonzalez, 96 A.D.3d at 766, 946 N.Y.S.2d 204;LiGreci v. LiGreci, 87 A.D.3d at 724, 929 N.Y.S.2d 253;Klapper v. Klapper, 204 A.D.2d at 519, 611 N.Y.S.2d 657).

Here, the defendant did not satisfy his prima facie burden of [99 A.D.3d...