| Spiegel-Porco v Porco |
| 2015 NY Slip Op 02957 [127 AD3d 849] |
| April 8, 2015 |
| Appellate Division, Second Department |
[*1]
| Paulette J. Spiegel-Porco, Respondent, v ElliottP. Porco, Appellant. |
John J. Leen, White Plains, N.Y., for appellant.
Arnold S. Kronick, White Plains, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Westchester County (Colangelo,J.), dated August 23, 2013, as denied, without a hearing, the defendant's cross motion,inter alia, for a downward modification of his child support obligation.
Ordered that the order is affirmed insofar as appealed from, with costs.
A party seeking modification of a child support award has the burden of establishingthe existence of a substantial change of circumstances (see Domestic RelationsLaw § 236 [B] [9] [b] [2] [i]; Reback v Reback, 93 AD3d 652 [2012]; Conway v Conway, 79 AD3d965 [2010]). "[A]n evidentiary hearing is necessary only where the proof submittedby the movant is sufficient to show the existence of a genuine issue of fact" (Rebackv Reback, 93 AD3d at 652-653; see Conway v Conway, 79 AD3d at965).
On November 7, 2012, the defendant cross-moved, inter alia, for a downwardmodification of his child support obligation set forth in the parties' judgment of divorceentered July 26, 2012. The defendant failed to demonstrate the existence of any genuineissue of fact regarding the existence of a change of circumstances during the interveningperiod of time that would warrant a hearing on his cross motion to reduce his childsupport obligation. To the contrary, the circumstances identified by the defendant existedat the time the initial award of child support was determined. Accordingly, the SupremeCourt properly denied, without a hearing, that branch of the defendant's cross motionwhich was for a downward modification of his child support obligation (see Reback vReback, 93 AD3d at 652-653; Conway v Conway, 79 AD3d at 965-966; see also Matter of Macari vMarichal, 107 AD3d 808 [2013]; Matter of Bono v Pitre, 97 AD3d 743 [2012]).
The remainder of the defendant's cross motion was properly denied. The defendantdid not set forth any proper basis for the Supreme Court to resettle or modify thejudgment of divorce (see CPLR 5019 [a]; JSO Assoc., Inc. v Price, 104 AD3d 737 [2013]; Adams v Fellingham, 52 AD3d443, 444-445 [2008]). Skelos, J.P., Roman, Hinds-Radix and LaSalle, JJ.,concur.