Simmons v. Simmons

Feb 3, 2006
Versions:26 A.D.3d 883
809 N.Y.S.2d 709

Appeal from an order of the Supreme Court, Allegany County (James E. Euken, A.J.), entered September 23, 2004. The order granted the motion of defendant to the extent that he sought a downward modification of the maintenance provision of the parties’ judgment of divorce.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order granting the motion of defendant to the extent that he sought a downward modification of the maintenance provision of the parties’ divorce judgment. Plaintiff failed to preserve for our review her contention that Supreme Court erred in entertaining the motion because defendant failed to include a statement of net worth in his motion papers, as required by 22 NYCRR 202.16 (k) (see generally Bonner v Lee [appeal No. 2], 255 AD2d 1005, 1006 [1998]). In any event, we note that the record indicates that both parties filed their statements of net worth prior to the hearing on defendant‘s motion (see Feinstein v Merdinger, 305 AD2d 115 [2003], lv dismissed 100 NY2d 639 [2003]), and the court considered the parties’ relative financial circumstances in rendering its decision (cf. Cole v Cole, 283 AD2d 602 [2001]). Contrary to plaintiff‘s further contention, we conclude that defendant showed a “substantial change in circumstance” warranting a downward modification of his maintenance obligation by establishing that he unexpectedly lost his job due to downsizing by his employer (Domestic Relations Law § 236 [B] [9] [b]; see Matter of Perry v Pica, 22 AD3d 903 [2005]; Neumark v Neumark, 189 AD2d 863, 864-865 [1993], lv dismissed 82 NY2d 843 [1993]; see also Sitler v Sitler, 266 AD2d 202 [1999]). Defendant also established that, despite his diligent job search, he had little prospect of finding employment at a salary comparable to his salary at the time of the divorce (cf. Sheila C. v Donald C., 5 AD3d 123, 124 [2004]). Present—Pigott, Jr., P.J., Green, Kehoe, Martoche and Pine, JJ. [See 11 Misc 3d 1055(A), 2004 NY Slip Op 51898(U) (2004).]

PIGOTT, JR., P.J., GREEN, KEHOE, MARTOCHE AND PINE, JJ.