| David v David |
| 2008 NY Slip Op 06795 [54 AD3d 714] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Amy B. David, Respondent, v Robert B. David,Appellant. |
—[*1] Barrocas & Rieger, LLP, Garden City, N.Y. (Keith Rieger and Emily Shaw Record ofcounsel), for respondent.
In a matrimonial action in which the parties were divorced by judgment entered December23, 2004, the defendant former husband appeals, as limited by his brief, from so much of anorder of the Supreme Court, Nassau County (Diamond, J.), dated March 16, 2007, as denied,without a hearing, those branches of his motion which were for downward modification of hismaintenance and child support obligations as provided in a stipulation of settlement dated June14, 2004, which was incorporated but not merged into the judgment of divorce, and granted thosebranches of the plaintiff former wife's cross motion which were for an award of unreimbursedmedical expenses in the sum of $604.35 and for an award of attorney's fees to the extent ofawarding the sum of $1,500.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, and the matter is remitted to the Supreme Court, Nassau County, for ahearing and new determination with respect to those branches of the defendant's motion whichwere for downward modification of his maintenance and child support obligations and thosebranches of the plaintiff's cross motion which were for unreimbursed medical expenses in thesum of $604.35 and for an award of attorney's fees.
If the party seeking modification of his or her maintenance or child support obligationspresents genuine issues of fact regarding his or her entitlement to a downward modification, thenthe court must conduct a hearing to determine whether modification is warranted (see Miller v Miller, 18 AD3d 629,630 [2005]; Soba v Soba, 213 AD2d 472, 473 [1995]).[*2]
In his affidavit in support of his motion, the defendantstated that he sustained substantial and severe financial hardship when he was unexpectedlyforced out of his job after 23 years of employment and was able to obtain new employment onlyat a sizeable reduction in salary. The defendant's allegations were supported by the financialstatements of his former employer, stating that as of the end of 2005 "[s]hould management'splans not be successful in increasing cash flow, the Company may not be able to continue as agoing concern," which established a genuine issue of fact. Accordingly, those branches of thedefendant's motion which were for a downward modification of his maintenance and childsupport obligations were improperly denied without a hearing (see Lewis v Lewis, 43 AD3d 462,464 [2007]; Soba v Soba, 213 AD2d at 473).
In addition, the Supreme Court erred in awarding to the plaintiff the sum of $604.35,representing the defendant's one-half share of certain unreimbursed medical expenses, withoutconducting a hearing as to whether the subject medical expenses resulted from a nonemergencysituation, in which case the defendant's obligation to reimburse the plaintiff for the expense willbe limited pursuant to the terms of the parties' stipulation of settlement.
A determination of whether the plaintiff should be awarded counsel fees pursuant toDomestic Relations Law § 237 (b) (see Reiff v Reiff, 240 AD2d 646 [1997]) mustawait a new determination with respect to "circumstances of the case and of the respectiveparties" (Domestic Relations Law § 237 [b]), including the defendant's true financial statusin relation to the plaintiff (see Schek vSchek, 49 AD3d 625 [2008]). Skelos, J.P., Santucci, Balkin and Chambers, JJ., concur.