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

Steven STEDFELT, appellant, v. Diane M. STEDFELT, respondent.

Decided: February 22, 1999

SONDRA MILLER, J.P., DAVID S. RITTER, MYRIAM J. ALTMAN and DANIEL F. LUCIANO, JJ. Sari M. Friedman, Garden City, N.Y. (Curtis R. Exum of counsel), for appellant. Blumberg, Cherkoss, Fitzgibbons & Blumberg, Amityville, N.Y. (Val Cherkoss of counsel), for respondent.

In a matrimonial action in which the parties were divorced by foreign decree entered June 8, 1992, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Oliver, J.), dated May 1, 1998, as denied his separate applications to change custody, for the appointment of a law guardian, and for a downward modification in his child support obligation, respectively.

ORDERED that the order is modified by deleting the provision thereof denying the plaintiff's application for a downward modification of his child support obligation;  as so modified, the order is affirmed insofar as appealed from, with costs payable to the plaintiff, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith.

The plaintiff has made a prima facie showing that he was discharged from active duty in the Marine Corps due to his having manifested symptoms of multiple sclerosis, and that as a result, he has suffered a concomitant loss of income.   The record presents viable questions of fact as to whether (1) the plaintiff's earing capacity has diminished because of his illness and his expenses now exceed his income, thereby constituting a substantial change of circumstances entitling him to a reduction in his child support obligation (see, Matter of King v. King, 193 A.D.2d 800, 598 N.Y.S.2d 278), or (2) as the defendant claims, the plaintiff has not suffered any loss in earning capacity, in spite of his illness, so that no reduction is warranted.   Under these circumstances, it was an improvident exercise of discretion to deny the plaintiff's application for a downward modification without a hearing (see, Schnoor v. Schnoor, 189 A.D.2d 809, 592 N.Y.S.2d 460;  see generally, Aragona v. Cin Mar Developers, 250 A.D.2d 792, 673 N.Y.S.2d 202;  Delman v. Misk, 205 A.D.2d 577, 614 N.Y.S.2d 25).

The plaintiff's remaining contentions are without merit.


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