Goldstein v. Pesato

77 A.D.2d 878, 431 N.Y.S.2d 51, 1980 N.Y. App. Div. LEXIS 12667

Opinion

In a support proceeding pursuant to article 4 of the Family Court Act, the appeal is from an order of the Family Court, Suffolk County, dated September 6, 1979, which, after a hearing, granted petitioner’s application to increase child support payments. Order reversed, on the law, without costs or disbursements, and proceeding remitted to the Family Court for a new hearing in accordance herewith. Although petitioner had pleaded both an increase in the needs of the children and in the appellant’s income, she failed to prove the former at the fact-finding hearing in this matter. Consequently, the Family Court based its order for an upward modification of child support on the sole fact that appellant’s income had increased substantially from the time of the separation agreement and of the judgment of divorce. This was error. It has been firmly held that under Matter of Boden v Boden (42 NY2d 210) an increase in the means of a noncustodial parent, standing alone, is not sufficient to warrant an upward modification of child support. (Edwards v Edwards, 62 AD2d 1027, 1028; see, also, Matter of Gould v Hannan, 44 NY2d 932, 933.) Damiani, J. P., Mangano, Rabin and Margett, JJ., concur.