O'Shea v. Cross

• Decision Date: 20 December 2011
• Citation: 2011 N.Y. Slip Op. 09292,935 N.Y.S.2d 118,90 A.D.3d 874
• Parties: Matthew O'SHEA, appellant, v. Kim CROSS, respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09292

90 A.D.3d 874

935 N.Y.S.2d 118

Matthew O'SHEA, appellant,

v.Kim CROSS, respondent.

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

Dec. 20, 2011.

John C. Lopez, Garnerville, N.Y. (Neal D. Futerfas of counsel), for appellant.

Bilotta and Metz, P.C., New City, N.Y. (Cassandra Bilotta of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In a matrimonial action in which the parties were divorced by judgment dated October 17, 2003, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Berliner, J.), dated July 20, 2010, as denied that branch of his motion which was for a downward modification of his child support obligation and granted the defendant's cross motion for an award of an attorney's fee.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff and the defendant were divorced by a judgment dated October 17, 2003, which provided that the plaintiff's child support obligation could be modified if he experienced a decrease in income based upon changes in the television-commercial production industry. In 2008 the plaintiff commenced a proceeding in the Family Court for a downward modification of his child support obligations based upon alleged changes in the television-commercial production industry. After a full evidentiary hearing, that proceeding was dismissed for failure to prosecute. In 2010 the plaintiff moved in the Supreme Court, inter alia, for a downward modification of his child support obligation based upon changes to the television-commercial production industry.

Contrary to the plaintiff's contention, he failed to satisfy his burden of demonstrating a change in the television-commercial production industry, since his last petition for modification, so as to warrant a downward modification of his child support obligations ( see Matter of Funt v. Funt, 65 N.Y.2d 893, 894, 493 N.Y.S.2d 303, 482 N.E.2d 1219; Matter of Ross v. Dittmar, 229 A.D.2d 396, 396, 644 N.Y.S.2d 643; cf. Matter of Bolotnikov v. Bolotnikov, 262 A.D.2d 318, 318, 691 N.Y.S.2d 564; Matter of Leone v. Leone, 137 A.D.2d 753, 755, 525 N.Y.S.2d 253). Accordingly, the Supreme Court properly denied that branch of his motion which was for a downward modification of his child support obligation.

Contrary to the plaintiff's contention, the Supreme Court did not...