Rabinovich v. Shevchenko

120 A.D.3d 786, 991 N.Y.S.2d 345

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 27, 2014
• Docket: 2013-01184
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by judgment of divorce dated June 23, 2011, the plaintiff appeals from an order of the Supreme Court, Suffolk County (McNulty, J.), dated December 3, 2012, which denied, without a hearing, his motion for a downward modification of his obligation to pay the defendant lifetime maintenance in the sum of $5,000 per month.

Ordered that the order is affirmed, with costs.

Domestic Relations Law § 236 (B) (9) (b) provides that, in a matrimonial action, the court may modify the maintenance award of any prior order or judgment upon a showing of “a substantial change in circumstance . . . including financial hardship.” The party seeking the modification of a maintenance award has the burden of establishing the existence of the change in circumstances that warrants the modification (see Taylor v Taylor, 107 AD3d 785, 786 [2013]; Matter of Sannuto v Sannuto, 21 AD3d 901, 902 [2005]), and the change is to be measured by a comparison between the payor’s financial circumstances at the time of the motion and at the time the order of which modification is sought was made (see Taylor v Taylor, 107 AD3d at 786). Here, the Supreme Court did not err in denying, without a hearing, the plaintiff’s motion for a downward modification of the maintenance obligation because the plaintiff failed to make even a threshold showing of a substantial change in circumstances that would warrant such a modification (see Wight v Wight, 232 AD2d 844, 845 [1996]; Martin v Martin, 194 AD2d 769 [1993]).

Skelos, J.E, Dickerson, Cohen and Duffy, JJ., concur.