Lipow v. Lipow

110 A.D.2d 756, 488 N.Y.S.2d 47, 1985 N.Y. App. Div. LEXIS 48656

Opinion

In order to obtain a reduction or elimination of the support and other financial provisions of the divorce judgment, the plaintiff had the burden of showing a substantial change in circumstances (see, Patell v Patell, 91 AD2d 1028; Domestic Relations Law § 236 [B] [9] [b]; Hickland v Hickland, 56 AD2d 978). The plaintiff, who had been forced to retire from a lucrative dental practice due to a neurological disability, testified that he was employed full time teaching library skills to elementary school children at a salary of approximately $7,800 per year at the time of the hearing at Special Term. Our review of the record indicates that the plaintiff was capable of earning a substantially higher income (see, Hickland v Hickland, 39 NY2d 1, cert denied 429 US 941). Indeed, Special Term rejected the plaintiff’s evidence as to his earnings, and other evidence adduced by the plaintiff as to his over-all financial condition, as “unbelievable”.

The only change in circumstances proven by the plaintiff was that the defendant wife had become employed. Since “the ability to be self-supporting is one of many factors to be considered by the court in awarding alimony” (McClusky v McClusky, 87 AD2d 973; see, Hickland v Hickland, 39 NY2d 1, cert denied 429 US 941, supra; Kover v Kover, 29 NY2d 408), Special Term properly modified the plaintiff’s support and other financial obligations pursuant to the judgment of divorce only by reducing the plaintiff’s alimony obligation by $4,500 per year.

We find no merit in the other contentions raised by the plaintiff. Titone, J. P., Thompson, Bracken and Rubin, JJ., concur.