MARRANO v. MARRANO (2005)

Pursuant to the parties' 1994 separation agreement, which was incorporated but not merged into the judgment of divorce, defendant agreed to pay plaintiff $40,000 in maintenance per year.   In May 2001, plaintiff sought enforcement of that provision, and defendant cross-moved for a reduction in maintenance.   Plaintiff contends that Supreme Court erred in confirming the report of the Referee, which granted the cross motion of defendant by reducing the award of maintenance to plaintiff to $22,000 per year.   We reject that contention.

 We note at the outset that the Referee erred in finding that, although defendant did not meet his burden of establishing “extreme hardship,” defendant nonetheless was entitled to a reduction in his maintenance obligation based on “a substantial change in his economic circumstance due to factors outside of his control.”   It is well settled that in a case such as this, where a party seeks to reduce the amount of maintenance recited in a separation agreement that has been incorporated but not merged into a judgment of divorce, that party must make “a showing of extreme hardship” (Domestic Relations Law § 236[B][9][b];  see Mishrick v. Mishrick, 251 A.D.2d 558, 674 N.Y.S.2d 746;   Hawley v. Hawley, 247 A.D.2d 806, 807-808, 669 N.Y.S.2d 406;  Didley v. Didley, 194 A.D.2d 7, 10, 605 N.Y.S.2d 685;  Cohen v. Seletsky, 142 A.D.2d 111, 117-118, 534 N.Y.S.2d 688).

 Upon the exercise of our independent power of factual review (see generally Matter of Baumgartner v. Baumgartner [Appeal No. 2], 226 A.D.2d 1104, 641 N.Y.S.2d 784), we nevertheless affirm the order on appeal.   The record establishes that defendant earned approximately $174,000 from his real estate development business in 1994 but that, by 1999, his earnings were reduced to approximately $18,000.   Further, the gross income from his business was approximately $1,810,000 in 1995 but was reduced to $295,000 in 1999.   Indeed, plaintiff did not controvert the evidence presented by defendant that his company, valued at $150,000, would produce a yearly income for defendant of $56,557 over the next three years, and that his approximate yearly personal expenses would be $50,400.   His only other assets at the time of the hearing were $300 in a bank account and $15,000 in equity in his home.   We therefore conclude that defendant met his burden of establishing that his continued payment of $40,000 per year to plaintiff would result in the requisite extreme hardship to warrant reduction of his maintenance obligation (see Matter of Talandis v. Talandis, 233 A.D.2d 689, 690, 650 N.Y.S.2d 345;  see also Hawley, 247 A.D.2d at 807-808, 669 N.Y.S.2d 406;  cf. Malaga v. Malaga, 17 A.D.3d 642, 643, 794 N.Y.S.2d 99;  Barden v. Barden, 245 A.D.2d 695, 696, 664 N.Y.S.2d 859).

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

MEMORANDUM: