| Rockwell v Rockwell |
| 2010 NY Slip Op 05378 [74 AD3d 1045] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Charles Rockwell, Respondent, v Pan Rockwell,Appellant. |
—[*1] Tabat, Cohen, Blum & Yovino, LLP, West Islip, N.Y. (Elizabeth Diesa of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment dated September 27,1982, the defendant former wife appeals from so much of an order of the Supreme Court, SuffolkCounty (McNulty, J.), dated July 27, 2009, as, without a hearing, denied her motion for anupward modification of the plaintiff former husband's maintenance obligation pursuant to theparties' separation agreement, which was incorporated but not merged into the judgment ofdivorce.
Ordered that the order is affirmed insofar as appealed from, with costs.
In circumstances where a separation agreement has been incorporated, but not merged, into ajudgment of divorce, a court is authorized to modify maintenance obligations even after the termfor durational maintenance in the agreement has expired (see Domestic Relations Law§ 236 [B] [9] [b]; Malaga vMalaga, 17 AD3d 642, 643 [2005]; Sass v Sass, 276 AD2d 42, 43 [2000]).However, a court may only grant such a modification upon the movant's showing of "extremehardship" (Domestic Relations Law § 236 [B] [9] [b]; see Lewis v Lewis, 43 AD3d 462, 463 [2007]; Malaga vMalaga, 17 AD3d at 643; Steinbergv Steinberg, 15 AD3d 388 [2005]; Lewis v Lewis, 183 AD2d 875, 876 [1992];Zacchia v Zacchia, 168 AD2d 677, 678 [1990]; Saxton v Saxton, 163 AD2d 292[1990]; Pintus v Pintus, 104 AD2d 866, 868 [1984]). Here, the defendant did not makethe required showing of extreme hardship. Her net worth statement, provided in support of hermotion for an upward modification, shows that she has no debt, her monthly income exceeds hermonthly expenses, and she has significant savings in her bank account. Thus, the defendantfailed to justify a resumption of the plaintiff's obligation to pay her maintenance in any amount,which obligation expired.
Furthermore, " '[a] court is required to conduct a hearing to determine whether amodification is warranted only when the movant presents genuine issues of fact' "(Lewis v Lewis, 43 AD3d at 463, quoting Vinnik v Vinnik, 295 AD2d 339,339-340 [2002]; see Wyser-Pratte v Wyser-Pratte, 66 NY2d 715, 717 [1985];Mishrick v Mishrick, 251 AD2d 558 [1998]; Grimaldi v Grimaldi, 167 AD2d443 [1990]). Absent a prima facie showing of entitlement to a modification, the party seekingmodification has no right to a hearing (see Lewis v Lewis, 43 AD3d at 463; Miller v Miller, 18 AD3d 629,630 [2005]; Mishrick v Mishrick, 251 AD2d at 558). Since the defendant failed to makea prima facie showing of extreme [*2]hardship, she was notentitled to a hearing. Rivera, J.P., Balkin, Leventhal and Roman, JJ., concur.