| Matter of Fantel v Stamatatos |
| 2009 NY Slip Op 01478 [59 AD3d 717] |
| February 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Robert S. Fantel, Respondent, v Elpida I.Stamatatos, Appellant. |
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In a child support proceeding pursuant to Family Court Act article 4, the mother appealsfrom an order of the Family Court, Suffolk County (Budd, J.), dated May 12, 2008, which deniedher objections to an order of the same court (Livrieri, S.M.), dated April 7, 2008, which, after ahearing, granted the father's petition to modify the child support provision of a judgment ofdivorce entered May 19, 1999, to require her to pay child support.
Ordered that the notice of appeal from the order dated April 7, 2008 is deemed a prematurenotice of appeal from the order dated May 12, 2008 (see CPLR 5520 [c]); and it isfurther,
Ordered that the order dated May 12, 2008 is reversed, on the law, with costs, the mother'sobjections are sustained, the order dated April 7, 2008 is vacated, and the petition is denied.
"When a party seeks to modify the child support provision of a prior order or judgment, heor she must demonstrate a 'substantial change in circumstance' " (Matter of Heyward v Goldman, 23AD3d 468, 469 [2005], quoting Domestic Relations Law § 236 [B] [9] [b]; see Matter of Talty v Talty, 42 AD3d546, 547 [2007]; Matter of Brescia v Fitts, 56 NY2d 132, 140-141 [1982];Matter of Love v Love, 303 AD2d 756 [2003]; Rosen v Rosen, 193 AD2d 661,662 [1993]). In determining whether there has been a change in circumstances warranting amodification of child support, the court must consider several factors including "the increasedneeds of the children, the increased cost of living insofar as it results in greater expenses for thechildren, a loss of income or assets by a parent or a substantial improvement in the financialcondition of a parent, and the current and prior lifestyles of the children" (Shedd v Shedd,277 AD2d 917, 918 [2000]; seeMatter of Heyward v Goldman, 23 AD3d 468 [2005]). "It is the burden of the movingparty to establish the change in circumstance warranting the modification" (Rosen v Rosen,193 AD2d at 662).
Here, the father sought to modify the child support provision of the judgment of divorce torequire the mother to pay child support, primarily based upon the fact that the parties' daughter,of whom the mother had custody, was emancipated, and the parties' son, of whom the father hadcustody, was a high school senior taking college courses for which he had to pay. However, thefather failed to present compelling proof that his son's needs had increased due to specialcircumstances. The father provided only generalized testimony that his son's educational needshad increased. Moreover, the father failed to present evidence that his financial circumstanceshad changed due to a loss of employment or assets not of his own making or that the mother'sfinancial circumstances had substantially improved. The fact that the parties' daughter was nowemancipated was insufficient to establish that the mother's financial means had increased. Underthe circumstances presented here, a modification of the child support provision of the judgmentof divorce was not warranted (see Matter of Love v Love, 303 AD2d 756 [2003]).Prudenti, P.J., Dillon, Covello and Leventhal, JJ., concur.