Sitler v. Sitler

266 A.D.2d 202, 697 N.Y.S.2d 316, 1999 N.Y. App. Div. LEXIS 11133

Opinion

—In a matrimonial action in which the parties were divorced by judgment entered April 1, 1997, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated May 21, 1998, as denied those branches of his motion which were for a downward modification of his maintenance obligation, and a reduction in the amount of the premium which he pays to his medical insurance carrier for the benefit of the plaintiff.

Ordered that the order is reversed insofar as appealed from, with costs, and the action is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

The defendant demonstrated that since the time of the divorce judgment his gross annual income has been substantially reduced as a result of his early retirement due to medical reasons which were adequately demonstrated in the record. Moreover, the plaintiff’s income has increased, since she is now receiving a portion of the husband’s pension.

The defendant has thus shown a change in the financial circumstances of both parties sufficient to warrant a downward modification of his maintenance and medical insurance premium obligations to the wife (see, Domestic Relations Law § 236 [B] [9] [b]; Manno v Manno, 224 AD2d 395; cf., Chasin v Chasin, 195 AD2d 922). However, on the record before us, the precise amount of net annual income (i.e., after taxes) which the defendant currently receives cannot be determined. Accordingly, the matter is remitted to the Supreme Court for a hearing on this issue, and for the calculation of modified awards commensurate with the parties’ current financial circumstances. O’Brien, J. P., Ritter, Santucci and Altman, JJ., concur.