SHEDD v. SHEDD (2000)

 Plaintiff contends that Supreme Court erred in refusing to grant her motion for an upward modification of child support.   We disagree.   Plaintiff contends that the increase in defendant's income from approximately $44,000 per year in 1990 to approximately $76,000 in 1999 constitutes a change in circumstances entitling her to increased child support.   She contends that, because child support was fixed by the court rather than by agreement or stipulation of the parties, the increase in defendant's income, standing alone, is a sufficient change in circumstances to justify an upward modification of child support.   We reject that contention.   Where child support is fixed by agreement or stipulation and the parties are merely attempting to readjust their respective support obligations, the party seeking an increase in child support must demonstrate an unanticipated and unreasonable change in circumstances (see, Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791).   Where child support is fixed by agreement or stipulation and the custodial parent demonstrates that the needs of the children are not being met, the court may order increased child support upon a showing of a change in circumstances (see, Matter of Brescia v. Fitts, 56 N.Y.2d 132, 141, 451 N.Y.S.2d 68, 436 N.E.2d 518).   The change in circumstances standard likewise must be met where the original amount of child support is fixed by the court (see, Matter of Orange County Dept. of Social Servs. v. Meehan, 252 A.D.2d 588, 590, 676 N.Y.S.2d 607;  Matter of Matteson v. Matteson, 228 A.D.2d 855, 856, 644 N.Y.S.2d 100;  Matter of Strack v. Strack, 225 A.D.2d 872, 873, 638 N.Y.S.2d 526;  Matter of Rogers v. Bittner, 181 A.D.2d 990, 581 N.Y.S.2d 945;  Scheinkman, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 14, Domestic Relations Law, C240:27D, at 278-279).

 When determining whether a change in circumstances warranting an upward modification has occurred, courts must consider several factors, including the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children (see, Matter of Brescia v. Fitts, supra, at 141, 451 N.Y.S.2d 68, 436 N.E.2d 518).  “While not itself determinative, this increase in the [defendant's] income may be considered as one factor in deciding whether an upward modification of child support was warranted” (Matter of Popp v. Raitano, 167 A.D.2d 404, 405, 561 N.Y.S.2d 813;  see, Matter of Rogers v. Bittner, supra;  see also, Matter of Wilson v. Brunsting, 213 A.D.2d 1042, 1043, 625 N.Y.S.2d 978;  cf., Matter of Gluckman v. Qua, 253 A.D.2d 267, 269, 687 N.Y.S.2d 460, lv. denied 93 N.Y.2d 814, 697 N.Y.S.2d 561, 719 N.E.2d 922;  Matter of Klein v. Klein, 251 A.D.2d 733, 734, 674 N.Y.S.2d 142).   Here, plaintiff demonstrated that defendant's income had increased gradually over the decade since the divorce, but failed to establish any other factors in support of an upward modification.   Consequently, the court did not abuse its discretion in refusing to grant plaintiff's motion.

Order unanimously affirmed without costs.

MEMORANDUM: