Reiff v. Reiff

240 A.D.2d 646, 659 N.Y.S.2d 996, 1997 N.Y. App. Div. LEXIS 6799

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1997
• Status: Published

Opinion

In a matrimonial action in which the parties were divorced by judgment entered March 10, 1995, the defendant former husband appeals from so much of an order of the Supreme Court, Nassau County (O’Brien, J.), dated April 10, 1996, as (1) denied his motion to reargue the plaintiff former wife’s motion to recover child support arrears and counsel fees, (2) denied his separate motion for a downward modification of his child support obligation, and (3) granted that branch of the cross motion of the plaintiff former wife which was for counsel fees to the extent of awarding her $500 in counsel fees.

Ordered that the appeal from so much of the order as denied reargument is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order is modified by deleting the provision thereof which granted that branch of the cross motion of the plaintiff former wife which was for an award of attorneys’ fees to the extent of awarding her $500, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.

The former husband failed to meet his burden of demonstrating that a substantial, unanticipated, and unreasonable change in circumstances justified a downward modification of the child support he agreed to pay pursuant to the parties’ stipulation of settlement which was incorporated but not merged into the judgment of divorce (see, Ruggerio v Ruggerio, 173 AD2d 595, 597; see also, Feld v Feld, 214 AD2d 884, 886-887). Thus, the court properly denied his motion for this relief.

Under the circumstances of this case the Supreme Court improvidently exercised its discretion in awarding counsel fees to the former wife (see, Domestic Relations Law § 237 [b]).

We have reviewed the remaining contentions of the former husband and find that none warrant further relief in his favor. Bracken, J. P., Santucci, Goldstein and Luciano, JJ., concur.