SIMMONS v. SIMMONS (2006)

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 A.D.2d 1005, 1006, 679 N.Y.S.2d 775).   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 A.D.2d 115, 762 N.Y.S.2d 491, lv. dismissed 100 N.Y.2d 639, 769 N.Y.S.2d 203, 801 N.E.2d 424), and the court considered the parties' relative financial circumstances in rendering its decision (cf. Cole v. Cole, 283 A.D.2d 602, 724 N.Y.S.2d 911).   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 A.D.3d 903, 802 N.Y.S.2d 772;  Neumark v. Neumark, 189 A.D.2d 863, 864-865, 593 N.Y.S.2d 59, lv. dismissed 82 N.Y.2d 843, 606 N.Y.S.2d 593, 627 N.E.2d 515;  see also Sitler v. Sitler, 266 A.D.2d 202, 697 N.Y.S.2d 316).   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 A.D.3d 123, 124, 773 N.Y.S.2d 22).

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

MEMORANDUM: