Wells v. Wells

242 A.D.2d 934, 662 N.Y.S.2d 892, 1997 N.Y. App. Div. LEXIS 10526

Opinion

Order unanimously affirmed without costs. Memorandum: We reject the contention of defendant that Supreme Court erred in summarily denying his cross motion for a downward modification of maintenance. The conclusory and unsubstantiated allegations of defendant that there is a substantial change of circumstances based on plaintiffs increase in income and his early retirement do not require a hearing (see, Martin v Martin, 194 AD2d 769, 770; Schnoor v Schnoor, 189 AD2d 809, 810; Nordhauser v Nordhauser, 130 AD2d 561, 562). At the time of the divorce, plaintiff was a housewife who had not worked outside of the home during the marriage. Defendant failed to demonstrate that plaintiffs subsequent increase in income was unanticipated. In addition, defendant submitted no proof, other than his unsubstantiated allegations, that he was compelled to take an early retirement at age 62, rather than at the age of 65 as allegedly contemplated at the time of the divorce (see, Martin v Martin, supra, at 770). Thus, the court properly determined that no hearing was necessary and properly denied the cross motion (see, Domestic Relations Law § 236 [B] [9] [b]; McCarthy v McCarthy, 214 AD2d 1000, 1001; Stempler v Stempler, 200 AD2d 733, 734). (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Maintenance.) Present—Green, J. P., Pine, Doerr, Balio and Fallon, JJ.