NORMAN v. DYKMAN (2005)

In a matrimonial action in which the parties were divorced by judgment dated November 17, 1997, which incorporated but did not merge the terms of a stipulation of settlement, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated March 22, 2004, as denied her motion for a downward modification of her maintenance and child support obligations, the appointment of a Law Guardian for the parties' children, and a hearing on the issue of custody, and granted the defendant's motion for arrears in the sum of $77,500.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff failed to demonstrate that continued enforcement of her obligation to pay maintenance under the parties' stipulation of settlement, which was incorporated but not merged into their judgment of divorce, would create an “extreme hardship” (Matter of Ross v. Ross, 297 A.D.2d 286, 287, 745 N.Y.S.2d 917;  see Pintus v. Pintus, 104 A.D.2d 866, 867-868, 480 N.Y.S.2d 501;  see also Domestic Relations Law § 236[B][9][b] ).  She also failed to establish a substantial, unanticipated, and unreasonable change in circumstances warranting a reduction in child support (see Matter of Boden v. Boden, 42 N.Y.2d 210, 213, 397 N.Y.S.2d 701, 366 N.E.2d 791;  Praeger v. Praeger, 162 A.D.2d 671, 673, 557 N.Y.S.2d 394;  Nordhauser v. Nordhauser, 130 A.D.2d 561, 562, 515 N.Y.S.2d 501).   Thus, the Supreme Court properly denied that branch of her motion which was for a downward modification.

Under the circumstances, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for the appointment of a Law Guardian (see Riccio v. Riccio, 21 A.D.3d 1107, 803 N.Y.S.2d 603;  Dodaro v. Dodaro, 269 A.D.2d 420, 702 N.Y.S.2d 905).   In addition, the Supreme Court properly found that there was insufficient evidence to warrant a hearing on the issue of custody (see Nash v. Yablon-Nash, 16 A.D.3d 471, 790 N.Y.S.2d 718;  Timson v. Timson, 5 A.D.3d 691, 774 N.Y.S.2d 751).

The plaintiff's remaining contentions are without merit.