| Grossman v Composto-Longhi |
| 2012 NY Slip Op 05138 [96 AD3d 1000] |
| June 27, 2012 |
| Appellate Division, Second Department |
| David Grossman, Respondent, v Maria Composto-Longhi,Appellant. |
—[*1] David Grossman, Smithtown, N.Y., respondent pro se.
In a matrimonial action in which the parties were divorced by judgment entered August 16,2005, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Buetow,Ct. Atty. Ref.), dated July 20, 2009, which, after a hearing, granted the plaintiff's motion for adownward modification of his child support obligation, (2) an order of the same court (Garguilo,J.) dated April 8, 2010, which granted those branches of the plaintiff's motion which were totransfer a proceeding entitled Matter of Composto-Longhi v Grossman, pending inFamily Court, Suffolk County, under docket No. F-06377-08, to the Supreme Court, SuffolkCounty, and to vacate orders of the Family Court, Suffolk County, dated September 29, 2008,and April 10, 2009, respectively, awarding the defendant a retroactive increase in child support,and (3) an order of the same court (Garguilo, J.) dated May 11, 2010, which denied her motion,inter alia, pursuant to 22 NYCRR 130-1.1 to impose sanctions upon the plaintiff and his counsel.
Ordered that the orders dated July 20, 2009, and May 11, 2010, are affirmed, without costs ordisbursements; and it is further,
Ordered that the order dated April 8, 2010, is modified, on the law, by deleting the provisionthereof granting that branch of the plaintiff's motion which was to vacate orders of the FamilyCourt, Suffolk County, dated September 29, 2008, and April 10, 2009, respectively, awarding thedefendant a retroactive increase in child support, and substituting therefor a provision denyingthat branch of the motion; as so modified, the order dated April 8, 2010, is affirmed, withoutcosts or disbursements.
Pursuant to the parties' stipulation of settlement dated April 22, 2005, which wasincorporated but not merged into their judgment of divorce entered August 16, 2005, the plaintiffagreed to pay child support to the defendant in the sum of $3,000 per month. In an order datedSeptember 29, 2008, the Family Court granted the defendant's petition for an upwardmodification and increased the plaintiff's child support obligation to $4,340 per month. Theplaintiff moved, inter alia, for a downward modification of his child support obligation in theSupreme Court, Suffolk [*2]County. In an order dated July 20,2009, the Supreme Court, after a hearing, granted the plaintiff's motion for a downwardmodification of his child support obligation. Thereafter, in an order dated April 8, 2010, theSupreme Court granted those branches of the plaintiff's motion which were to transfer aproceeding entitled Matter of Composti-Longhi v Grossman, which was pending inFamily Court, Suffolk County, under docket No. F-06377-08, to the Supreme Court, SuffolkCounty, and to vacate orders of the Family Court dated September 29, 2008, and April 10, 2009,respectively, granting the defendant a retroactive increase in child support. Additionally, in anorder dated May 11, 2010, the Supreme Court denied the defendant's motion, inter alia, pursuantto 22 NYCRR 130-1.1 to impose sanctions upon the plaintiff and his counsel.
" 'An appellant who perfects an appeal by using the appendix method must file an appendixthat contains all the relevant portions of the record in order to enable the court to render aninformed decision on the merits of the appeal' " (Gandolfi v Gandolfi, 66 AD3d 834, 835 [2009], quoting NYCTL 1998-1 Trust v Shahipour, 29AD3d 965, 965 [2006]; see Mure vMure, 92 AD3d 653 [2012]; Christian v Graham, 73 AD3d 676, 677 [2010]). "The appendixshall contain those portions of the record necessary to permit the court to fully consider the issueswhich will be raised by the appellant and the respondent" (22 NYCRR 670.10-b [c] [1];see CPLR 5528 [a] [5]). Here, contrary to the plaintiff's contention, the appendix andsupplemental appendix, which contain copies of the notices of motion and theaffidavits/affirmations filed in support, opposition, and reply thereto, are adequate to determinethe issues raised on the instant appeals (see Love v Rockwell's Intl. Enters., LLC, 83 AD3d 914, 916[2011]).
The Supreme Court properly exercised its concurrent jurisdiction with the Family Court(see NY Const, art VI, § 7 [a]) in entertaining the plaintiff's motion for adownward modification of his child support obligation. Moreover, on the merits, the plaintiffdemonstrated his entitlement to a downward modification of his child support obligation. A partyseeking downward modification of a support obligation has the burden of showing a substantialchange in circumstances and that he used his best efforts to obtain employment commensuratewith his qualifications and experience (see Domestic Relations Law § 236 [B] [9][b] [1]; Matter of Rodriguez v Mendoza-Gonzalez, 96 AD3d 766 [2d Dept 2012];Matter of Atabay v Cinar, 96 AD3d 832 [2d Dept 2012]). Here, the plaintiff showed thathis prior employment was terminated through no fault of his own and that, despite his efforts tosecure employment commensurate with his qualifications and experience, he was only able toobtain a position at a much lower salary.
However, the Supreme Court should not have granted that branch of the plaintiff's motionwhich was to vacate orders of the Family Court, Suffolk County, dated September 29, 2008, andApril 10, 2009, granting the defendant a retroactive increase in child support. "A court ofcoordinate jurisdiction has no authority to rule on a matter already reviewed by another Judge ofequal authority" (Matter of DeLanoy v O'Rourke, 276 AD2d 728, 729 [2000]; see Doscher v Doscher, 54 AD3d890, 891 [2008]; Nong YawTrakansook v 39 Wood Realty Corp., 18 AD3d 633, 634 [2005]; Matter of Guidrozv Bochenski, 170 AD2d 1042 [1991]). Additionally, the Supreme Court had "no discretionto reduce or cancel arrears of child support which accrue before an application for downwardmodification of the child support obligation" (Hasegawa v Hasegawa, 290 AD2d 488,490 [2002]; see Matter of Dox v Tynon, 90 NY2d 166, 175-176 [1997]; Dembitzer v Rindenow, 35 AD3d791, 793 [2006]; Matter of Jenkinsv McKinney, 21 AD3d 558 [2005]).
The defendant's remaining contentions are either without merit or not properly before thisCourt on these appeals, as they involve matters that were not the subject of the orders appealedfrom. Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.