Butto v. Twietmeyer

Appellate Division of the Supreme Court of New York

Butto v. Twietmeyer

266 A.D.2d 834, 698 N.Y.S.2d 367, 1999 N.Y. App. Div. LEXIS 11758

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 12, 1999

StatusPublished

This text of 266 A.D.2d 834 (Butto v. Twietmeyer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Butto v. Twietmeyer, 266 A.D.2d 834, 698 N.Y.S.2d 367, 1999 N.Y. App. Div. LEXIS 11758 (N.Y. Ct. App. 1999).

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Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Family Court erred in denying respondent’s first and second objections and in failing to grant in its entirety respondent’s fifth objection to the order of the Hearing Examiner granting petitioner an upward modification of child support. Petitioner failed to establish that the original amount of support to which the parties stipulated at the time of their divorce was inadequate to meet the child’s needs (see, Merl v Merl, 67 NY2d 359, 362; Matter of Brescia v Fitts, 56 NY2d 132, 139-140; Matter of Boden v Boden, 42 NY2d 210, 213). The Hearing Examiner properly considered petitioner’s loss of employment (see, Matter of Brescia v Fitts, supra, at 141). Petitioner, however, made only generalized claims that the child’s needs have increased (see, Matter of Tripi v Faiello, 195 AD2d 958, lv dismissed 82 NY2d 803) and did not “provide specific dollar amounts of the increase in the cost[s] ‘related to the [child’s] basic necessities of food, shelter, clothing and medical and dental needs, as well as to the expenses associated with the [child’s] varied interests and school activities’ ” (McArthur v Bell [appeal No. 2], 201 AD2d 974, 975, lv dismissed 83 NY2d 906, lv denied 85 NY2d 809).

Respondent also is entitled to reimbursement for day care expenses pursuant to the oral stipulation of the parties at the time of the divorce. We modify the order by granting respondent’s first and second objections, by providing that petitioner is not entitled to an upward modification of child support and by vacating the first ordering paragraph of the order of the Hearing Examiner and by granting in its entirety respondent’s fifth objection and awarding respondent $1,511.29 for unreim[835]*835bursed day care expenses. (Appeal from Order of Monroe County Family Court, Bonadio, J. — Support.) Present — Den-man, P. J., Hayes, Hurlbutt, Scudder and Balio, JJ.

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—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Family Court erred in denying respondent’s first and second objections and in failing to grant in its entirety respondent’s fifth objection to the order of the Hearing Examiner granting petitioner an upward modification of child support. Petitioner failed to establish that the original amount of support to which the parties stipulated at the time of their divorce was inadequate to meet the child’s needs (see, Merl v Merl, 67 NY2d 359, 362; Matter of Brescia v Fitts, 56 NY2d 132, 139-140; Matter of Boden v Boden, 42 NY2d 210, 213). The Hearing Examiner properly considered petitioner’s loss of employment (see, Matter of Brescia v Fitts, supra, at 141). Petitioner, however, made only generalized claims that the child’s needs have increased (see, Matter of Tripi v Faiello, 195 AD2d 958, lv dismissed 82 NY2d 803) and did not “provide specific dollar amounts of the increase in the cost[s] ‘related to the [child’s] basic necessities of food, shelter, clothing and medical and dental needs, as well as to the expenses associated with the [child’s] varied interests and school activities’ ” (McArthur v Bell [appeal No. 2], 201 AD2d 974, 975, lv dismissed 83 NY2d 906, lv denied 85 NY2d 809).

Respondent also is entitled to reimbursement for day care expenses pursuant to the oral stipulation of the parties at the time of the divorce. We modify the order by granting respondent’s first and second objections, by providing that petitioner is not entitled to an upward modification of child support and by vacating the first ordering paragraph of the order of the Hearing Examiner and by granting in its entirety respondent’s fifth objection and awarding respondent $1,511.29 for unreim[835]*835bursed day care expenses. (Appeal from Order of Monroe County Family Court, Bonadio, J. — Support.) Present — Den-man, P. J., Hayes, Hurlbutt, Scudder and Balio, JJ.

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266 A.D.2d 834, 698 N.Y.S.2d 367, 1999 N.Y. App. Div. LEXIS 11758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butto-v-twietmeyer-nyappdiv-1999.

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