| Taylor v Taylor |
| 2011 NY Slip Op 03049 [83 AD3d 815] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Janet Taylor, Respondent, v Ian Ross Taylor,Appellant. |
—[*1] Cohen Hennessey Bienstock & Rabin, P.C., White Plains, N.Y. (Patricia E. Hennessey ofcounsel), for respondent.
In a matrimonial action in which the parties were divorced by judgment dated August 1,2005, the defendant former husband appeals, as limited by his brief, from stated portions of anorder of the Supreme Court, Westchester County (Tolbert, J.), entered June 29, 2010, which,after a hearing, inter alia, denied his motion for a downward modification of his maintenance andchild support obligations, as provided in a stipulation of settlement dated July 14, 2005, whichwas incorporated but not merged into the judgment of divorce, and granted that branch of thecross motion of the plaintiff former wife which was to hold him in contempt for failure to paymaintenance arrears.
Ordered that the order is modified, on the law, by adding to the provision thereof holding thedefendant in contempt after the words "and past due support arrears to plaintiff" the words ", andthat the defendant former husband's conduct was calculated to, or actually did, defeat, impair,impede, or prejudice the rights and remedies of the plaintiff former wife;" as so modified, theorder is affirmed insofar as appealed from, with costs to the plaintiff former wife.
The parties were married and have four children. In 2004, the plaintiff former wifecommenced this action for a divorce against the defendant former husband. In 2005, the partiesentered into a stipulation of settlement, which provided, inter alia, that the plaintiff would havecustody of the children, and that the defendant would pay maintenance and child support in anagreed-upon amount. The stipulation also provided that the defendant waived his right to seekany downward modification of his maintenance obligation until August 1, 2012, "excluding anunforeseen, unanticipated catastrophic event, that so negatively impacts the Husband's health orearning capacity as to result in 'extreme hardship' to him as that term is set forth in [DomesticRelations Law] § 236 (B) (9) (b)." The stipulation was incorporated but not merged intothe judgment of divorce dated August 1, 2005.
After the defendant lost his job at Bear Stearns in 2008 and was hired by Natixis, a Frenchbank, the defendant moved for a downward modification of his maintenance and child supportobligations.[*2]
After a hearing, the Supreme Court properly denied thatbranch of the defendant's motion which was for a downward modification of his maintenanceobligation. The evidence at the hearing showed that, although the economic downturn resulted inthe defendant losing his job at Bear Stearns and earning a substantially smaller bonus in 2009than he had received in previous years at Bear Stearns, the defendant's base salary andcompensation plan at Natixis were similar to his base salary and compensation plan at BearStearns. Moreover, the evidence at the hearing showed that the economic downturn did not resultin any appreciable change in the defendant's lifestyle (see Matter of Sand v Sand, 290AD2d 451, 452 [2002]; Matter of Westwater v Donnelly, 204 AD2d 467, 468 [1994];Sofia v Sofia, 162 AD2d 594 [1990]). Accordingly, the defendant failed to demonstratethat continued enforcement of his obligation to pay maintenance under the parties' stipulation ofsettlement would create an "extreme hardship" (Domestic Relations Law § 236 [B] [9] [b][1]; see Schlakman v Schlakman, 38AD3d 640, 641 [2007]; Norman vDykman, 23 AD3d 358, 358-359 [2005]; Sofia v Sofia, 162 AD2d at 594).
The Supreme Court also properly denied that branch of the defendant's motion which was fora downward modification of his child support obligation. The defendant failed to establish asubstantial, unanticipated, and unreasonable change of circumstances sufficient to warrant such amodification (see Schlakman v Schlakman, 38 AD3d at 641; Beard v Beard, 300AD2d 268 [2002]; Matter of Westwater v Donnelly, 204 AD2d at 468; Sofia vSofia, 162 AD2d at 594).
The Supreme Court also properly granted that branch of the plaintiff's cross motion whichwas to hold the defendant in contempt for failure to pay maintenance arrears. Contrary to thedefendant's contention, the plaintiff demonstrated that the defendant's admitted failure to paymaintenance arrears was willful (see Domestic Relations Law § 245; Lopez v Ajose, 33 AD3d 976, 977[2006]; Orlando v Orlando, 222 AD2d 906, 908-909 [1995]). The defendant is correctthat the order appealed from failed to set forth the required recital that the contemptuous conductwas "calculated to or actually did defeat, impair, impede or prejudice the [plaintiff's] rights orremedies" (Stempler v Stempler, 200 AD2d 733, 734 [1994] [internal quotation marksomitted]; see Biggio v Biggio, 41AD3d 753, 754 [2007]; Lopez v Ajose, 33 AD3d at 977). However, since the findingof contempt is supported by the record, the omission was a mere irregularity which may becorrected on appeal (see Biggio v Biggio, 41 AD3d at 754; Lopez v Ajose, 33AD3d at 977; Raphael v Raphael,20 AD3d 463, 464 [2005]). Accordingly, we modify the order to add the requisite language.
The defendant's remaining contentions are without merit. Mastro, J.P., Chambers, Lott andCohen, JJ., concur.