Culton v. Culton

Nov 13, 2000
Versions:277 A.D.2d 935
715 N.Y.S.2d 266
2000 N.Y. App. Div. LEXIS 11469

—Order unanimously reversed on the law without costs, objections granted, order of Hearing Examiner vacated and petition dismissed. Memorandum: Respondent appeals from an order of Family Court denying his objections to the order of a Hearing Examiner that granted the petition for an upward modification *936of child support. We agree with respondent that the Hearing Examiner erred in concluding that the standard set forth in Matter of Boden v Boden (42 NY2d 210) did not apply to the petition for modification. Because petitioner failed to sustain her evidentiary burden under Boden or Matter of Brescia v Fitts (56 NY2d 132), we reverse the Family Court order, grant the objections, vacate the order of the Hearing Examiner and dismiss the petition.

A party who seeks a modification of the amount of child support incorporated into a judgment of divorce by stipulation of the parties must establish “an unanticipated and unreasonable change in circumstances” (Matter of Boden v Boden, supra, at 213) or that the basic needs of the child are not being met (Matter of Brescia v Fitts, supra, at 140-141). The Boden standard applies where, as here, the parties stipulate that a prior Family Court order of support be incorporated into a judgment of divorce (see, Matter of Weise v Weise, 255 AD2d 929). An increase in the income of respondent and the cost of providing for maturing children is not an unanticipated and unreasonable circumstance (see, Kinsella v Kinsella, 206 AD2d 889, 890). A custodial parent nevertheless is entitled to a modification if it is established that the basic needs of the child cannot be met under the current level of support (see, Matter of Brescia v Fitts, supra, at 140-141). However, “[t]he conclusory assertions * * * of increased costs related to basic necessities of food and clothing for the child [ren] resulting from [their] maturing, without documentary or other supporting proof, are insufficient to establish that the child [ren] ’s needs are not being met” (Kinsella v Kinsella, supra, at 890; see also, Tuchrello v Tuchrello, 204 AD2d 1020, 1021; Matter of Hulik v Hulik, 201 AD2d 909, 910).

The contention of respondent that the court erred in finding him to be in violation of an order of support is not properly before us. This appeal is from Family Court’s order denying respondent’s objections to the Hearing Examiner’s order of support, and the order on appeal does not contain any finding pertaining to the violation of an order of support. Because we conclude that the petition ^must be dismissed, we do not reach respondent’s remaining contentions. (Appeal from Order of Erie County Family Court, Rosa, J. — Support.) Present— Pigott, Jr., P. J., Wisner, Kehoe and Balio, JJ.