| Reback v Reback |
| 2012 NY Slip Op 01664 [93 AD3d 652] |
| March 6, 2012 |
| Appellate Division, Second Department |
| Gina Reback, Respondent, v David Reback,Appellant. |
—[*1] Helene M. Selznick, Somers, N.Y., for respondent.
In a matrimonial action in which the parties were divorced by judgment dated August 30,2007, the defendant appeals, as limited by his brief, from so much of an order of the SupremeCourt, Westchester County (Tolbert, J.), dated October 4, 2010, as denied, without a hearing, hismotion for a downward modification of his maintenance and child support obligations andgranted those branches of the plaintiff's cross motion which were (a) for an award of counselfees, and (b) to require him to post an undertaking to the extent of directing him to post anundertaking in the sum of $45,000.
Ordered that the order is affirmed insofar as appealed from, with costs.
"Where a party seeks to modify a maintenance obligation set forth in a judgment of divorce,that party must show a substantial change in circumstances warranting such a modification" (LiGreci v LiGreci, 87 AD3d 722,724 [2011]; see Domestic Relations Law § 236 [B] [9] [b] [1]). Similarly, the partyseeking modification of a child support order has the burden of establishing the existence of asubstantial change in circumstances (seeConway v Conway, 79 AD3d 965 [2010]).
On a motion for downward modification of child support and maintenance obligations, anevidentiary hearing is necessary only where the proof submitted by the movant is sufficient toshow the existence of a genuine issue of fact (see Trainor v Trainor, 188 AD2d 461[1992]). Here, the defendant failed to submit any evidence demonstrating that the assertedreduction in his income was the result of anything other than his own self-created hardship(see Matter of Knights v Knights, 71 NY2d 865, 867 [1988]; Matter of Grettler v Grettler, 12 AD3d602, 603 [2004]; Frasca v Frasca, 213 AD2d 589, 590 [1995]). Therefore, contraryto the defendant's contention, the Supreme Court properly denied, without a hearing, his motionfor a downward modification of his maintenance and child support obligations.
The Supreme Court properly granted that branch of the plaintiff's cross motion which was foran award of counsel fees (see Domestic Relations Law § 237; DeCabrera vCabrera-Rosete, 70 NY2d 879, 881 [1987]). The court did not err in granting that branch ofthe plaintiff's cross motion [*2]which was to require thedefendant to post an undertaking to the extent of directing him to post an undertaking in the sumof $45,000 (see Domestic Relations Law § 243). Dillon, J.P., Leventhal, Belen andLott, JJ., concur.