| Kandus v Forlenza |
| 2015 NY Slip Op 07624 [132 AD3d 815] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Petra Kandus, Formerly Known as Petra Forlenza,Appellant, v Riccardo Forlenza, Respondent. |
Swidler & Messi, LLP, New York, N.Y. (Steven A. Swidler of counsel), forappellant.
Guttridge & Cambareri, P.C., Tarrytown, N.Y. (John C. Guttridge and ScottStone of counsel), for respondent.
Appeal by the plaintiff from an order of the Supreme Court, Westchester County(Colleen D. Duffy, J.), entered September 13, 2013. The order, insofar as appealed from,denied the plaintiff's motion for an upward modification of the defendant's child supportobligation pursuant to the parties' separation agreement, and for an award of counselfees.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties' separation agreement, which set forth the parties' child supportobligations, was executed in 2005, prior to the effective date of the 2010 amendments tothe Domestic Relations Law (see L 2010, ch 182, § 13). Therefore,in order to establish her entitlement to an upward modification of the defendant's childsupport obligation, the plaintiff had the burden of establishing a substantial,unanticipated, and unreasonable change in circumstances resulting in a concomitantneed, or that the agreement was not fair and equitable when entered into (see Matterof Gravlin v Ruppert, 98 NY2d 1, 5 [2002]; Zaratzian v Abadir, 128 AD3d 953 [2015]; Matter of Suchan v Eagar, 121AD3d 910 [2014]; Nelsonv Nelson, 75 AD3d 593, 593-594 [2010]), or that the reasonable needs of thechild are not being met (see Matter of Brescia v Fitts, 56 NY2d 132, 140 [1982];Nelson v Nelson, 75 AD3d593, 593-594 [2010]; Matter of Alexander v Strathairn, 69 AD3d 930, 931[2010]).
Here, the plaintiff failed to meet that burden. Although the defendant relocated to theCzech Republic for an extended period of time to fulfill the responsibilities of hisemployment, the plaintiff failed to offer proof that this affected her expenses, or thechildren's needs (see Matter of Alexander v Strathairn, 69 AD3d at 931).
Under the circumstances here, the denial of counsel fees to the plaintiff was aprovident exercise of discretion (see DeCabrera v Cabrera-Rosete, 70 NY2d 879,880 [1987]; Matter of Alexander v Strathairn, 69 AD3d at 931).
The plaintiff's remaining contentions are without merit. Hall, J.P., Austin, Sgroi andHinds-Radix, JJ., concur.