IN RE: Jeanne LOVE

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

IN RE: Jeanne LOVE, Appellant-Respondent, v. Gerard LOVE, Respondent-Appellant.

Decided: March 31, 2003

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES and WILLIAM F. MASTRO, JJ. William A. Whitman, Miller Place, N.Y., for appellant-respondent. Tabat, Cohen, Blum & Kramer, LLP, West Islip, N.Y. (Robert A. Cohen of counsel), for respondent-appellant.

In a support proceeding pursuant to Family Court Act article 4, (1) the mother appeals from so much of an order of the Family Court, Suffolk County (Dounias, J.), entered March 28, 2002, as denied her objections to an order of the same court (Goglas, H.E.), entered February 28, 2001, which, after a hearing, granted the father's petition for an upward modification of her child support obligation, and (2) the father cross-appeals, as limited by his brief, from so much of the order entered March 28, 2002, as denied his objections to the order entered February 28, 2001.

ORDERED that the order entered March 28, 2002, is reversed insofar as appealed from, on the law, the mother's objections are sustained, and the petition is denied;  and it is further,

ORDERED that the order entered March 28, 2002, is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the mother.

 Where a party seeks to modify the child support provision contained in a prior order or judgment, he or she must demonstrate a “substantial change in circumstances” (Domestic Relations Law § 236[B][9] [b];  see Weiss v. Weiss, 294 A.D.2d 566, 742 N.Y.S.2d 663;  Matter of Prisco v. Buxbaum, 275 A.D.2d 461, 712 N.Y.S.2d 891;  Shedd v. Shedd, 277 A.D.2d 917, 715 N.Y.S.2d 132). Among the factors to be considered in determining whether there has been a change in circumstances warranting an upward modification of support are “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” (Shedd v. Shedd, supra;  see also Brescia v. Fitts, 56 N.Y.2d 132, 140-141, 451 N.Y.S.2d 68, 436 N.E.2d 518;  Matter of Rosenthal v. Buck, 281 A.D.2d 909, 723 N.Y.S.2d 773).   While an increase in the noncustodial parent's income is a factor which may be considered in deciding whether to grant an upward modification of child support, this factor alone is not determinative (see Matter of Rosenthal v. Buck, supra;  Shedd v. Shedd, supra).

 Here, the father, who has custody of the parties' son, sought to modify the judgment of divorce to require the mother to pay child support, primarily based upon the fact that she has increased her income by obtaining employment.   However, the evidence presented at the modification hearing also indicated that the father's base salary has increased by $75,000 since the parties were divorced in 1997.   Moreover, the father offered only generalized testimony that the child's needs have increased because he is older, and participating in sports and recreational activities.   Under these circumstances, a modification of the child support provision of the judgment of divorce is not warranted simply because the mother's income has increased (see Matter of Rosenthal v. Buck, supra;  Shedd v. Shedd, supra;  Matter of Owens v. Wollmers, 245 A.D.2d 380, 665 N.Y.S.2d 682;  Tripi v. Faiello, 195 A.D.2d 958, 600 N.Y.S.2d 876;  Rogers v. Bittner, 181 A.D.2d 990, 581 N.Y.S.2d 945).

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