Sullivan v. Sullivan

• Decision Date: 28 April 1966
• Citation: 55 Misc.2d 691,286 N.Y.S.2d 346
• Parties: In the Matter of Elizabeth M. SULLIVAN, Petitioner, v. Roger M. SULLIVAN, Respondent, Request for Modification of Court Order.
• Court: New York Family Court

Page 346

286 N.Y.S.2d 346

55 Misc.2d 691

In the Matter of Elizabeth M. SULLIVAN, Petitioner, v. Roger M. SULLIVAN, Respondent, Request for Modification of

Court Order.

Family Court, Dutchess County.

April 28, 1966.

Cucci, Welch & Boehm, Rochester, for petitioner.

Effron & Goldberg, Poughkeepsie; Alexander Goldberg, of counsel, for respondent.

DECISION

RAYMOND E. ALDRICH, Jr., Judge.

In a proceeding under Article 3--A--Uniform Support of Dependents Law, of the Domestic Relations Law, brought by Elizabeth M. Sullivan, as petitioner, the Family Court of Dutchess County made a permanent order on March 7, 1962, in which Roger M. Sullivan the respondent, was directed to pay $30.00 per week for the support of the petitioner and two children, then 4 1/2 and approximately 1 1/2 years old.

By petition dated June 15, 1965, the respondent asked that the order be modified downward to $20.00 per week because the respondent anticipated entering graduate school in the fall of that year, and by petition dated July 7, 1965, the petitioner countered with a request that the order be modified upward to $50.00 per week. Both modification proceedings were heard together and will be determined in this decision. Throughout the original support proceeding and the modification proceedings herein, the respondent reserved the right to challenge his parentage of the younger child of the petitioner; however, he has not pursued the issue, and the original support order and all previous applications for modification have included this child.

Anticipating attending law school, the respondent applied for his modification three months prior to enrolling on September 13, 1965. His employment at the time of his application was the same as at the time of the entry of the order of support when his average take-home pay was $95.00 per week. On September 15, 1965, he terminated his employment in Poughkeepsie, New York, actually enrolled in the school of law at Columbia University, and at the present time is a full-time student in good standing.

Respondent is 35 years old. He pursued his college education while working as a claim manager for an insurance company. Now, however, he has given up his employment in order to devote his full time to attending graduate school. Without present income he is financing his educational pursuit through a $2,500.00 educational loan guaranteed by the State of New York, a $500.00 loan and a $500.00 grant from Colunbia University, and modest savings of $600.00. He anticipates financing his second year the same way, acquiring some assistance through temporary employment in the summer in which he hopes to earn $1,000.00. He lives in a standard dormitory room which has a bed, a desk, a bookcase and a chair, and he enjoys community shower privileges. His tuition is approximately $1,800.00, he pays $530.00 for his room and approximately $140.00 for books and stationery. The charge for board at the University is $745.00 per year, but rather than pay this sum, he obtains his meals in the community and he estimates his food expenses at between $500.00 and $600.00 a year, thereby affecting a savings from what he would have to pay the University.

The petitioner has received from the respondent $30.00 a week for the support of herself and the children who are living with her. She testified her total monthly expenses approximate $307.00 per month. She is employable and at the last hearing, she testified she was earning $1.95 per hour for a four-hour, five-day week as an office clerk with a take-home pay of $37.00 per week, from which she must expend $10.00 for a babysitter during her hours of employment.

While this court has continuing jurisdiction over any support order and may modify any order issued in the course of such proceeding (Family Court Act, section 451), this power is only exercised on proof of intervening material change of circumstances occurring since the prior order was made (Gino v. Gino, 105 N.Y.S.2d 333; Brown v. Brown, 194 Misc. 975, 87 N.Y.S.2d 105).

The question presented in both of these modification proceedings now heard together, is whether a material change of circumstances has occurred so as to require the court to amodify the order of March 7, 1962.

With respect to the modification proceeding brought by Elizabeth M. Sullivan, this court is constrained to deny any increase in the order of $300.00 to $50.00, or any increase at all, as she has failed to show any material change of circumstances since the entry of the order which would require an increase. While testimony was given concerning the needs of the wife and the children, there was no indication that these requirements were any different than at the time of the entry of the original order, or that the wife and the children are in greater need at the present time than they were then. The only material change of circumstances has been the relinquishment of employment by the respondent, and...