| Schwaber v Schwaber |
| 2012 NY Slip Op 00772 [91 AD3d 939] |
| Jnury 31, 2012 |
| Appellate Division, Second Department |
| Susan Schwaber, Respondent, v Marc Schwaber,Appellant. |
—[*1] Del Vecchio & Recine, LLP, Garden City, N.Y. (Charlene Malone of counsel), forrespondent.
In a matrimonial action in which the parties were divorced by judgment entered November14, 2008, the defendant appeals from an order of the Supreme Court, Nassau County (Maron, J.),dated February 17, 2011, which denied, without a hearing, his motion for a downwardmodification of his child support and maintenance obligations set forth in a settlement agreementdated July 1, 2008, which was incorporated but not merged into the judgment of divorce.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied, without a hearing, the defendant's motion for adownward modification of his child support and maintenance obligations set forth in a settlementagreement which was incorporated but not merged into the judgment of divorce. The defendantfailed to make a prima facie showing that his loss of employment constituted the substantial,unanticipated, and unreasonable change in circumstances necessary to warrant a downwardmodification of his child support obligation because he did not demonstrate that he diligentlysought re-employment commensurate with his earning capacity (see Baker v Baker, 83 AD3d 977,978 [2011]; Conway v Conway, 79AD3d 965 [2010]; Barson vBarson, 32 AD3d 872, 873 [2006]). Moreover, the defendant's statement of net worthindicated that despite his loss of employment, he had sufficient means to provide child support atthe level set by the parties in their settlement agreement (see Matter of Kalarickal v Kalarickal, 89 AD3d 846 [2011]; Jelfo v Jelfo, 81 AD3d 1255, 1257[2011]; Matter of Fragola v Alfaro,45 AD3d 684, 686 [2007]; Matterof Talty v Talty, 42 AD3d 546, 547 [2007]). The defendant also failed to make a primafacie showing that continued enforcement of his maintenance obligation would result in theextreme hardship necessary to warrant a downward modification (see Capozzoli v Capozzoli, 81 AD3d584, 585 [2011]; Klein v Klein,74 AD3d 753 [2010]; DiVito vDiVito, 56 AD3d 601, 602 [2008]; Mahato v Mahato, 16 AD3d 386 [2005]). Rivera, J.P., Eng, Lottand Sgroi, JJ., concur.