Davi v. Davi

74 A.D.2d 696, 425 N.Y.S.2d 665, 1980 N.Y. App. Div. LEXIS 10382

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1980
• Status: Published

Opinion

Appeal from an order of the Family Court of Montgomery County, entered January 3, 1979, which modified an order of the Supreme Court. A Supreme Court judgment divorcing the parties herein was granted on February 3, 1975. Said judgment directed the petitioner to pay $90 per week for the support of his wife and two minor children, Nancy and Rosemary Davi. On August 26, 1977, the support obligation of petitioner was reduced to $60 per week, Nancy Davi having reached her majority. This proceeding was commenced on September 5, 1978 seeking further modification of the original judgment of divorce on the grounds that Rosemary Davi had attained her majority, and, further, that respondent wife was presently employed and able to support herself. Respondent cross-petitioned to modify the prior order upwards to $90 per week.

* Family Court modified the judgment decree downward to $50 per week. There must be an affirmance. It is clear that the request for modification was addressed to the sound discretion of the court (Pozzobon v Pozzobon, 54 AD2d 1127). Our review, accordingly, is limited to whether the modification as ordered was an abuse of discretion. We conclude that it was not. Petitioner’s only contention in support of his request that he be relieved from support payments was that his wife was employed and should support herself now that both their children were self-supporting. The evidence at the hearing clearly established that petitioner was earning $17,000 per year while his wife had only recently become employed at $100 per week. Respondent wife is six years older than petitioner and in poor health. The parties had been married for 24 years. Since the ultimate determination in each case must depend on a balancing of all relevant factors to see if the balance struck amounts to a significant change in circumstances justifying modification of prior orders, we cannot say that the conclusion reached below is an abuse of discretion (see McMains v McMains, 15 NY2d 283). Order affirmed, with costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr., and Mikoll, JJ., concur.

The order and the court’s decision appealed from are silent as to any disposition of respondent’s cross petition. It must be presumed to have been denied.