Dunnan v. Dunnan

293 A.D.2d 345, 740 N.Y.S.2d 195, 2002 N.Y. App. Div. LEXIS 3785

Opinion

Order, Supreme Court, New York County (Walter Tolub, J.), entered February 6, 2001, which, insofar as appealed from as limited by the briefs, confirmed a Special Referee’s recommendation to deny plaintiff husband’s motion for a downward modification of maintenance, and awarded defendant wife attorneys’ fees of $20,000, unanimously affirmed, without costs.

Plaintiff fails to show a change of circumstances warranting a downward modification of maintenance (Domestic Relations Law § 236 [B] [9] [b]). Although plaintiff’s income from employment is less than the severance payments he was receiving at the time of the maintenance award, no basis exists to disturb the Special Referee’s findings that he has managed to maintain his predivorce lavish lifestyle, and that, absent credible testimony explaining how, his actual or potential assets and income from sources other than employment must be greater than he claims (see, Kardanis v Veils, 90 AD2d 727; Mellen v Mellen, 260 AD2d 609, 609-610). The award of attorneys’ fees was properly based on the foregoing findings and the parties’ relative financial circumstances (see, Charpie v Charpie, 271 AD2d 169, 171-172). Plaintiff waived any right he had to an evidentiary hearing on the issue of attorneys’ fees by failing to object to the submission of the issue on papers or to otherwise request such a hearing (see, Beal v Beal, 196 AD2d 471, 473). Concur—Nardelli, J.P., Sullivan, Wallach and Rubin, JJ.