| Matter of Alexander v Strathairn |
| 2010 NY Slip Op 00673 [69 AD3d 930] |
| January 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Jill Alexander, Appellant, v DavidStrathairn, Respondent. |
—[*1] Van DeWater & Van DeWater, LLP, Poughkeepsie, N.Y. (Kyle W. Barnett of counsel), forrespondent.
In a child support proceeding pursuant to Family Court Act article 4, the mother appealsfrom an order of the Family Court, Dutchess County (Forman, J.), dated February 2, 2009,which, in effect, denied her objections to an order of the same court (Winslow, S.M.) datedSeptember 25, 2008, which, after a hearing, dismissed her petition to vacate an order of childsupport of the Family Court, Ulster County (Beisel S.M.), dated October 18, 2004, entered onconsent, and to determine support de novo, or to upwardly modify the father's child supportobligation, and denied her application for an attorney's fee.
Ordered that the order dated February 2, 2009, is affirmed, with costs.
We agree with the Family Court that the October 18, 2004, order entered on consent settingthe father's child support obligation adequately complied with Family Court Act § 413 (1)(h) (see Ricca v Ricca, 57 AD3d868, 869 [2008]; Blaikie v Mortner, 274 AD2d 95, 100, 101 [2000]). Moreover,since the mother failed to show either an unanticipated, substantial change in circumstancessince the entry of the consent order, or that the child's reasonable needs were not being met withthe current level of support, an upward modification was properly denied (see Friedman v Friedman, 65 AD3d1081 [2009]; Matter of Imperato vImperato, 54 AD3d 375, 376 [2008]). "While an increase in the noncustodial parent'sincome is a factor which may be considered in deciding whether to grant an upward modificationof child support, this factor alone is not determinative" (Matter of DiGiorgi v Buda, 26 AD3d 434, 434 [2006]; seeMatter of Love v Love, 303 AD2d 756, 756 [2003]).
Finally, the denial of the mother's application for an attorney's fee was a provident exerciseof discretion under the circumstances of the case (see DeCabrera v Cabrera-Rosete, 70NY2d 879 [1987]; Morrissey v Morrissey, 259 AD2d 472, 473 [1999]). Santucci, J.P.,Dickerson, Eng and Chambers, JJ., concur.