Demske v. Demske

Appellate Division of the Supreme Court of New York

Demske v. Demske

245 A.D.2d 1031, 666 N.Y.S.2d 65, 1997 N.Y. App. Div. LEXIS 13776

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

DecidedDecember 31, 1997

StatusPublished

Cited by1 cases

This text of 245 A.D.2d 1031 (Demske v. Demske) 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.

Bluebook

Demske v. Demske, 245 A.D.2d 1031, 666 N.Y.S.2d 65, 1997 N.Y. App. Div. LEXIS 13776 (N.Y. Ct. App. 1997).

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Opinion

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting that portion of plaintiff’s motion for an upward modification of child support. Plaintiff failed to establish “that the combination of her own income and the payments contributed by [defendant] does not adequately meet the children’s needs” (Matter of Brescia v Fitts, 56 NY2d 132, 140; see, McArthur v Bell [appeal No. 2], 201 AD2d 974, Iv dismissed 83 NY2d 906, lv denied 85 NY2d 809). The court further erred in awarding plaintiff counsel fees without first conducting a hearing (see, McArthur v Bell, supra; McCann v Guterl, 100 AD2d 577). We modify the order, therefore, by denying that portion of plaintiffs motion for an upward modification of child support and counsel fees, and we remit the matter for a hearing on the issue of counsel fees. In view of our disposition, we vacate that portion of the order directing a reduction in defendant’s child support obligation while defendant is contributing to the children’s college education. (Appeal from Order of Supreme [1032]*1032Court, Erie County, Michalek, J.—Support.) Present—Pine, J. P., Lawton, Wisner, Balio and Fallon, JJ.

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—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting that portion of plaintiff’s motion for an upward modification of child support. Plaintiff failed to establish “that the combination of her own income and the payments contributed by [defendant] does not adequately meet the children’s needs” (Matter of Brescia v Fitts, 56 NY2d 132, 140; see, McArthur v Bell [appeal No. 2], 201 AD2d 974, Iv dismissed 83 NY2d 906, lv denied 85 NY2d 809). The court further erred in awarding plaintiff counsel fees without first conducting a hearing (see, McArthur v Bell, supra; McCann v Guterl, 100 AD2d 577). We modify the order, therefore, by denying that portion of plaintiffs motion for an upward modification of child support and counsel fees, and we remit the matter for a hearing on the issue of counsel fees. In view of our disposition, we vacate that portion of the order directing a reduction in defendant’s child support obligation while defendant is contributing to the children’s college education. (Appeal from Order of Supreme [1032]*1032Court, Erie County, Michalek, J.—Support.) Present—Pine, J. P., Lawton, Wisner, Balio and Fallon, JJ.

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Bluebook (online)

245 A.D.2d 1031, 666 N.Y.S.2d 65, 1997 N.Y. App. Div. LEXIS 13776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demske-v-demske-nyappdiv-1997.

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