Tripi v. Faiello

195 A.D.2d 958, 600 N.Y.S.2d 876, 1993 N.Y. App. Div. LEXIS 7733

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1993
• Status: Published

Opinion

Order unanimously reversed on the law without costs and matter remitted to Monroe County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in granting petitioner’s request for an upward modification of child support. Petitioner’s proof failed to establish either an unanticipated and unreasonable change of circumstances (see, Matter of Boden v Boden, 42 NY2d 210, 213), or that the child’s needs were not being adequately met (see, Matter of Brescia v Fitts, 56 NY2d 132, 140; Matter of LeMoyne v Story, 193 AD2d 1067; Labita v Labita, 147 AD2d 535). An increase in child support is not warranted simply because respondent is now making more money or because petitioner has moved into a more expensive home (see, Matter of Rogers v Bittner, 181 AD2d 990; Matter of Popp v Raitano, 167 AD2d 404). Petitioner failed to provide any proof regarding the increased needs of the child; her generalized claims that the child’s needs have increased as the child has matured do not warrant an upward modification of support (see, Labita v Labita, supra).

Family Court’s award of counsel fees also was improper. Where, as here, a party opposes an award of counsel fees, "the affirmations of counsel alone will not suffice” to support such award (Matter of Joan Marie D. v Harold G., 155 AD2d 457, ). "Rather, the reasonable amount and nature of the claimed services must be established at an adversarial hearing” (Matter of Joan Marie D. v Harold G., supra, at 458; see also, Price v Price, 115 AD2d 530; Weinberg v Weinberg, 95 AD2d 828). We therefore remit the matter for a hearing on the issue of counsel fees. (Appeal from Order of Monroe County Family Court, Sciolino, J.—Child Support.) Present— Denman, P. J., Balio, Lawton, Doerr and Boehm, JJ.