Rosen v. Rosen
| Decision Date | 10 May 1993 |
| Parties | Rae Dichter ROSEN, Respondent, v. Mark I. ROSEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Mark I. Rosen, pro se.
Charles Moser, Brooklyn (Robert A. Ugelow, of counsel), for respondent.
Before BRACKEN, J.P., and RITTER, COPERTINO and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In a matrimonial action in which the parties were divorced by judgment dated January 10, 1991, the defendant former husband appeals from (1) an order of the Supreme Court, Kings County (Rigler, J.), entered May 13, 1991, which, denied, inter alia, his motion for the appointment of a Law Guardian for the parties' sons and (2) an order of the same court, entered May 16, 1991, which granted the plaintiff former wife's application for additional counsel fees in the amount of $7,500.
ORDERED that the orders are affirmed, with one bill of costs.
The parties were divorced by judgment dated January 10, 1991. By notice of appeal dated February 14, 1991, the defendant appealed various provisions of the divorce judgment. By order dated October 11, 1991, this court dismissed that appeal for lack of prosecution.
The dismissal of the defendant's appeal from the judgment of divorce is relevant in that it is generally held that a litigant may not raise any issue on a subsequent appeal which was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution (see, Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575; see also, People v. Corley, 67 N.Y.2d 105, 109, 500 N.Y.S.2d 633, 491 N.E.2d 1090; cf., Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 396 N.Y.S.2d 170, 364 N.E.2d 835). In the context of this case, this rule precludes the defendant's challenges to the valuation of the plaintiff's Master of Business Administration degree the court's determination of child support, the retroactive fixing of child support arrears, and the court's award of additional legal fees to the plaintiff's counsel, all of which could have been raised on the prior appeal from the divorce judgment.
The defendant's demand for the downward modification of his child support obligation must also fail. A prior order of child support may be modified upon a showing of a substantial change in circumstances (see, Domestic Relations Law § 236[B][9][b]. It is the burden of the moving party to establish the change in circumstance warranting the modification (see, Carr v. Carr, 187 A.D.2d 407, 589 N.Y.S.2d 822; Clemente v. Clemente, 186 A.D.2d 620, 589 N.Y.S.2d 777; Ciostek v. Ciostek, 186 A.D.2d 1087, 588 N.Y.S.2d 690; Mitchell v. Mitchell, 170 A.D.2d...
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