Stirber v. Stirber

• Citation: 527 N.Y.S.2d 983,139 A.D.2d 727
• Parties: Hester STIRBER, Respondent, v. Bud STIRBER, Appellant.
• Decision Date: 25 April 1988
• Court: New York Supreme Court Appellate Division

Page 983

527 N.Y.S.2d 983

139 A.D.2d 727

Hester STIRBER, Respondent, v. Bud STIRBER, Appellant.

Supreme Court of New York, Appellate Division,

Second Department.

April 25, 1988

Resnicoff, Samanowitz, Fogel & Brawer, Great Neck (Barton R. Resnicoff, of counsel), for appellant. Ruskin, Schlissel, Moscou, Evans & Faltischek, P.C., Mineola (Leonard G. Florescue and Ellen F. Kessler, of counsel), for respondent.

In a matrimonial action, the defendant husband appeals from an order of the Supreme Court, Nassau County (Balletta, J.), dated December 10, 1986, which denied his motion for downward modification of his maintenance obligation under a judgment of divorce and which granted the plaintiff wife's cross motion for leave to enter a money judgment for arrears. ORDERED that the order is affirmed, with costs. The defendant failed to demonstrate any substantial change in circumstances sufficient to warrant a downward modification of his maintenance obligation ( see, Kover v. Kover, 29 N.Y.2d 408, 328 N.Y.S.2d 641, 278 N.E.2d 886; Ardito v. Ardito, 97 A.D.2d 830, 469 N.Y.S.2d 13). In any event, the alleged changes in the defendant's financial position were either anticipated by him when he entered into the stipulation of settlement which was incorporated into the judgment of divorce ( see, Langlitz v. Langlitz, 73 A.D.2d 740, 423 N.Y.S.2d 276) or were self-imposed ( see, Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, rearg. denied 39 N.Y.2d 943, 386 N.Y.S.2d 1028, 352 N.E.2d 896, cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310; Weinberg v. Weinberg, 95 A.D.2d 828, 464 N.Y.S.2d 20). Furthermore, the court properly denied the defendant's motion without an evidentiary hearing inasmuch as he failed to set forth sufficient allegations to warrant a downward modification ( cf., Levinson v. Levinson, 97 A.D.2d 458, 467 N.Y.S.2d 427), and presented no issue of fact which required resolution at a hearing ( see, O'Neill v. O'Neill, 109 A.D.2d 829, 486 N.Y.S.2d 351; Ardito v. Ardito, supra ).

THOMPSON, J.P., and LAWRENCE, SPATT and HARWOOD, JJ., concur.