Schlakman v. Schlakman

66 A.D.3d 786, 886 N.Y.S.2d 758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 2009
• Status: Published

Opinion

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Budd, J.), dated December 22, 2008, which denied his objections to an order of the same court (Rodriguez, S.M.), dated August 27, 2008, denying, after a hearing, his petition to modify the child support provision in a stipulation of settlement dated November 15, 2002, which was incorporated but not merged into the parties judgment of divorce entered June 9, 2003.

Ordered that the order dated December 22, 2008, is affirmed, without costs or disbursements.

A party seeking to change the support provisions contained in a stipulation of settlement incorporated but not merged into a judgment of divorce has the burden of establishing a substantial, unanticipated, and unreasonable change in circumstances (see Matter of Ripa v Ripa, 61 AD3d 766 [2009]; Matter of Broomhall v Jones, 47 AD3d 711 [2008]; Matter of Chupungco v Acompado, 47 AD3d 628 [2008]; Beard v Beard, 300 AD2d 268 [2002]). Although the father has shown that his income is less than it was at the time that his support obligation was established by the stipulation, he did not submit any evidence that he had diligently sought to increase his income. The father failed to establish that his current income is commensurate with his earning potential (see Beard v Beard, 300 AD2d at 268; Matter of Davis v Davis, 197 AD2d 622 [1993]).

The father’s remaining contentions are without merit. Skelos, J.P., Santucci, Belen and Hall, JJ., concur.