| Matter of Grange v Grange |
| 2010 NY Slip Op 07839 [78 AD3d 1253] |
| November 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Kathryn G. Grange, Respondent, v Robert T. Grange,Appellant. |
—[*1] Kathryn G. Grange, Albany, respondent pro se.
Egan Jr., J. Appeal from an order of the Family Court of Albany County (M. Walsh, J.), enteredNovember 18, 2008 which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 4, for modification of a prior order of spousal support.
The parties to this proceeding were married in 1958 and are still married, but have been living apartsince about 1990. In March 1999, petitioner was awarded spousal support in the amount of $500 permonth. In 2007, petitioner commenced the instant proceeding seeking an upward modification inspousal support.[FN1]After a hearing before a judicial hearing officer in October 2007, the petition was dismissed based onpetitioner's failure to establish a change in circumstances. In January 2008, upon petitioner's writtenobjections, Family Court vacated the decision and remanded the matter to a Support Magistrate for anew hearing.[FN2]A second hearing [*2]was conducted and, at the conclusion ofpetitioner's case, the Support Magistrate granted respondent's motion to dismiss based on petitioner'sfailure to establish a change in circumstances. Upon petitioner's written objections, Family Courtvacated the Support Magistrate's decision in June 2008 and ordered an upward modification of spousalsupport to $800.[FN3]Family Court subsequently granted respondent's motion to reargue and held that, while petitioner hadestablished a prima facie case for an increase in support, it had erred in ordering such an increase when,given the Support Magistrate's dismissal of the petition at the conclusion of petitioner's proof,respondent had never had the opportunity to present his own proof in opposition to the petition. Thematter was thus remanded to the Support Magistrate for a new hearing. In September 2008, after thisthird hearing, the Support Magistrate granted respondent's motion to dismiss, finding that petitionerfailed to establish that respondent had the financial ability to increase his monthly spousal supportobligation. Upon petitioner's written objections, Family Court vacated the Support Magistrate'sdecision finding that petitioner established a sufficient change in circumstances of both her andrespondent's financial situations to, among other things, warrant an increase in respondent's monthlyspousal support obligation to $800. Respondent now appeals.
Initially, we note that we are unable to consider factual evidence attached to petitioner's brief thatwas not made part of the record, including certain 1997, 1999 and 2006 tax documents, sworncorrespondence from petitioner's daughter and other documents dated in 1980 and 1990 regardingcertain real property located in New York (see Benifits by Design Corp. v Contractor Mgt. Servs., LLC, 75 AD3d826, 829 [2010], citing Kool-TempHeating & Cooling v Ruzika, 6 AD3d 869, 870 [2004]). Turning to the merits of the appeal,"[a] married person is chargeable with the support of his or her spouse and, if possessed of sufficientmeans or able to earn such means, may be required to pay for his or her support a fair and reasonablesum, as the court may determine, having due regard to the circumstances of the respective parties"(Family Ct Act § 412). The provisions of Family Ct Act § 412 "require a delicatebalancing of each party's needs and means" (Matter of Shreffler v Shreffler, 283 AD2d 679,680 [2001]), taking into consideration the duration of the marriage, income disparity and the ability of apetitioner to support himself or herself (seeMatter of Sweet v Sweet, 75 AD3d 744, 746 [2010]). In order to obtain modification ofsuch an award, the moving party must establish that there has been a substantial change incircumstances since the prior award (see Domestic Relations Law § 236 [B] [9] [b];Matter of Haviland v Haviland, 216 AD2d 698 [1995]).
We agree with respondent that, since it was petitioner's burden to establish a change incircumstances, Family Court erred in taking judicial notice of the contents of financial disclosureaffidavits filed with Family Court in 1999, which were neither offered nor admitted into evidence at anyof the hearings (see Walker v City of NewYork, 46 AD3d 278, 282 [2007]). The mere presence of those documents in the court filedoes not mean that judicial notice properly can be taken of any factual material asserted therein (seeWalker v City of New York, 46 AD3d at 282; Weinberg v Hillbrae Bldrs., 58 AD2d 546[1977]).
In reviewing the record, and according deference to Family Court's determinations, we find thatpetitioner failed to establish that either her or respondent's financial situation has significantly changedsince the date of the prior award so as to warrant a change in spousal [*3]support. Petitioner testified that she has increased medical expenses andher monthly debts, in the amount of $1,300, exceed her monthly income by approximately $200, thusrequiring her to borrow an additional $400 per month from her two daughters. Yet, there is noindication that petitioner's current financial hardship is any different than the hardships that she may havefaced in 1999. Furthermore, there is an indication that some of petitioner's listed medical expenses aretemporary and may be reduced by medical benefits made available to petitioner through respondent'spension.
The record also reflects that, while respondent's 2007 pension and Social Security income (in theamount of $40,000) increased slightly (by approximately $4,000) from his 1999 income, his monthlyexpenses, including his monthly spousal support obligation and payments for federal and state backtaxes owed, total approximately $3,100. As the Support Magistrate found in its September 2008determination, this essentially equalizes the parties' disposable income. The record also reflects that,although respondent was self-employed as a computer consultant in 2007, and Family Court imputedadditional income to him of $12,000, his business expenses (in the amount of $16,366) that yearexceeded his reported business income of $15,918. We note that while Family Court took intoconsideration certain assets acquired by respondent prior to the 1999 award of spousal support,including a 1997 Lincoln car with 212,000 miles (worth an estimated $2,700), a 1995 BMWmotorcycle with 100,000 miles (worth an estimated $1,500) and a 1989 Catalina sailboat (worth anestimated $20,000), it failed to consider the value of petitioner's ownership interests in certain parcelsof real property—one parcel owned jointly by the parties and estimated to be worth $300,000and the second parcel owned solely by petitioner, which respondent valued at $15,000. Accordingly,petitioner has failed to establish her entitlement to an upward modification in spousal support. We havereviewed the parties' remaining arguments and find them to be without merit.
Peters, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and petition dismissed.
Footnote 1: Although initially filed inWestchester County, this proceeding was thereafter transferred to Albany County.
Footnote 2: Family Court vacated the October2007 order based on the lack of a written stipulation by the parties consenting that a judicial hearingofficer hear and determine the matter (see CPLR 4317 [a]).
Footnote 3: Family Court's June 2008 order isbased on its review of petitioner's objections, respondent's rebuttal and the underlying proceedings.