JONATHAN REYNHOUT PLAINTIFF APPELLANT v. DEBORAH HUESTON FORMERLY KNOWN AS DEBORAH REYNHOUT DEFENDANT RESPONDENT (2010)

MEMORANDUM AND ORDER

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

Memorandum:  Supreme Court properly denied the motion of plaintiff husband seeking, inter alia, to modify the judgment of divorce, which incorporated but did not merge the terms of the parties' separation agreement, by reducing the amount of maintenance paid by him.   In support of that part of his motion, plaintiff was required in accordance with the case law in effect at the time of entry of the judgment to “present evidence that there has been a substantial change in financial circumstances between the time of entry of the judgment of divorce and the time of the [motion] for modification” (McCarthy v. McCarthy, 214 A.D.2d 1000, 1000;  see Matter of Downer v. Downer, 199 A.D.2d 1092;  Kurtz v. Kurtz, 58 A.D.2d 1006, lv denied 43 N.Y.2d 641).   Plaintiff submitted no evidence of his financial situation at those relevant times and thus failed to meet his burden with respect to that part of the motion (see McCarthy, 214 A.D.2d 1000;  Klapper v. Klapper, 204 A.D.2d 518, 519).   The contention of defendant wife that the court erred in denying her application for attorney's fees is not properly before us inasmuch as she failed to take a cross appeal from the order (see generally CPLR 5515;  Andritz v. Andritz, 131 A.D.2d 529).

Patricia L. Morgan

Clerk of the Court