ROSEN v. ROSEN (1999)

In a matrimonial action in which the parties were divorced by judgment entered September 12, 1989, the plaintiff appeals from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Nicolai, J.), entered November 18, 1997, as granted the defendant's application for a downward modification of child support, and reduced that monthly child support obligation to $500 retroactive to March 1, 1996, the date of the plaintiff's preceding application, inter alia, to hold the defendant in contempt.

ORDERED that the order and judgment is modified by deleting the provision thereof reducing the monthly child support obligation of $500 retroactive to March 1, 1996, and substituting therefor a provision reducing the monthly child support obligation to the amount of $500 retroactive to September 27, 1996;  as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the plaintiff.

 We agree with the plaintiff that the Supreme Court erred insofar as it directed that the reduction of the defendant's monthly child support obligation be made retroactive to March 1, 1996, some seven months prior to the defendant's September 27, 1996, application for a downward modification of child support (see, Matter of Dox v. Tynon, 90 N.Y.2d 166, 170, 659 N.Y.S.2d 231, 681 N.E.2d 398).

 However, contrary to the plaintiff's contention, the defendant fulfilled his burden of establishing a change in circumstances sufficient to warrant a downward modification of support (cf., Matter of Dallin v. Dallin, 250 A.D.2d 847, 672 N.Y.S.2d 791;  Matter of Heverin v. Sackel, 239 A.D.2d 418, 419, 657 N.Y.S.2d 441;  Matter of Yepes v. Fichera, 230 A.D.2d 803, 804, 646 N.Y.S.2d 533;  Matter of Zaccagnino v. Sisca, 223 A.D.2d 546, 636 N.Y.S.2d 1015).

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.