Reset A A Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Carol DeCARLO, Respondent, v. Joseph DeCARLO, Appellant.

Decided: May 26, 1998

Before BRACKEN, J.P., and COPERTINO, JOY and McGINITY, JJ. Long, Tuminello, Besso, Seligman, Quinlan & Werner, Bay Shore (Kevin J. Werner and Jeffrey S. Horn, of counsel), for appellant. Mulhern & Klein, Wantagh, for respondent.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Dounias, J.), dated February 19, 1997, which denied his objections to an order of the same court (Rodriguez, H.E.), dated September 13, 1997, made after a hearing, which granted, in part, the mother's petition for an upward modification of child support.

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the father's objections to the order of the Hearing Examiner are sustained, the order of the Hearing Examiner is vacated, and the petition for an upward modification of child support is dismissed.

 We agree with the father's contention that the mother adduced insufficient evidence to justify the upward modification of child support ordered by the Family Court.   The mother does not dispute that the parties' separation agreement, which contained a child support provision, was fair and equitable when entered into, and she has failed to show that an unanticipated and unreasonable change in circumstances has occurred or that the child's right to receive adequate support is not being met (see, Merl v. Merl, 67 N.Y.2d 359, 502 N.Y.S.2d 712, 493 N.E.2d 936;  Matter of Brescia v. Fitts, 56 N.Y.2d 132, 451 N.Y.S.2d 68, 436 N.E.2d 518;  Matter of Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791).   Neither the increased income of a noncustodial parent nor a generalized claim that the child's needs have increased as the child matures warrant an upward modification (see, Matter of Lunman v. Lomanto, 239 A.D.2d 770, 657 N.Y.S.2d 479;  Rich v. Rich, 234 A.D.2d 354, 651 N.Y.S.2d 107;  Matter of Strack v. Strack, 225 A.D.2d 872, 638 N.Y.S.2d 526).


Copied to clipboard