Trainor v. Trainor

• Decision Date: 07 December 1992
• Citation: 188 A.D.2d 461,590 N.Y.S.2d 910
• Parties: Doretta M. TRAINOR, Appellant, v. Joseph F. TRAINOR, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 910

590 N.Y.S.2d 910

188 A.D.2d 461

Doretta M. TRAINOR, Appellant, v. Joseph F. TRAINOR, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 7, 1992.

Moran & Brodrick, Garden City (Leslie K. Rothkopf, of counsel), for appellant.

Leon Fuhrer, Hauppauge, for respondent.

Before BRACKEN, J.P., and SULLIVAN, COPERTINO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action in which the parties were divorced by a judgment of the Supreme Court, Suffolk County (Fierro, J.), entered October 19, 1989, the plaintiff wife appeals from an order of the same court dated October 9, 1990, which, without a hearing, denied her motion, inter alia, for a modification of the child support and maintenance provisions of the judgment of divorce.

ORDERED that the order is affirmed, without costs or disbursements.

Pursuant to Domestic Relations Law § 236(B)(9)(b), the Supreme Court may modify the child support or maintenance provisions of a prior judgment "upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstances". In order to be entitled to an evidentiary hearing in connection with an application made pursuant to this statute, the movant must submit an affidavit sufficient to show the existence of a genuine issue of fact (see generally, Wyser-Pratte v. Wyser-Pratte, 66 N.Y.2d 715, 496 N.Y.S.2d 991, 487 N.E.2d 901; Smith v. Smith, 174 A.D.2d 818, 571 N.Y.S.2d 127; Praeger v. Praeger, 162 A.D.2d 671, 557 N.Y.S.2d 394; Gerringer v. Gerringer, 152 A.D.2d 652, 543 N.Y.S.2d 734; Senzer v. Senzer, 132 A.D.2d 694, 518 N.Y.S.2d 173). We agree with the Supreme Court that the plaintiff wife failed to submit such an affidavit, and that she failed to demonstrate the existence of any material issue of fact.

The plaintiff's application for a modification of the maintenance provision of the underlying judgment was based primarily on her assertion that, due to a medical condition, she is unable to secure the kind of employment which, as of the time of the underlying judgment, she had anticipated. However, the plaintiff submitted no proof that this medical condition, which, in any event, has not been verified (see, Praeger v. Praeger, 162 A.D.2d 671, 557 N.Y.S.2d 394, supra ), either arose, or significantly worsened, during the brief period which elapsed between the time of the underlying judgment and the time of the present application. The proof of a "substantial change in circumstance" (Domestic Relations Law § 236[B][9][b] was thus insufficient to warrant a hearing.

The plaintiff wife also asserted that unless the maintenance provision of the underlying judgment were to be modified, she would become "poverty stricken". However, considering her financial interest in two pieces of real property valued, respectively, at $262,000 and $360,000, we find that the plaintiff's conclusory assertion that she is unable to be self-supporting (see, Domestic...