State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 520622 

________________________________

ROBERT W. GRACE,

Respondent,

v

MEMORANDUM AND ORDER

JULIE B. GRACE,

Appellant.

(And a Related Proceeding.)

________________________________

Calendar Date: September 9, 2015

Before: Peters, P.J., Lahtinen, Garry and Rose, JJ.

__________

Cynthia Feathers, Glens Falls, for appellant.

Frost & Kavanaugh, PC, Troy (David J. Kavanaugh of

counsel), for respondent.

__________

Peters, P.J.

Appeal from an order of the Supreme Court (Zwack, J.),

entered July 8, 2014 in Rensselaer County, which, among other

things, denied defendant's cross motion to modify a prior order

of child support.

Plaintiff (hereinafter the husband) and defendant

(hereinafter the wife) are the divorced parents of five children

(born in 1997, 1999, 2003 and 2005). Pursuant to an oral

stipulation of settlement that was incorporated but not merged

into the parties' 2011 judgment of divorce, the husband agreed to

pay the wife $16,500 annually in child support, which represented

a downward deviation from the Child Support Standards Act (see

Domestic Relations Law § 240 [1-b]), as well as $28,000 annually
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in maintenance for five years. The stipulation further provided

that a termination of the husband's maintenance obligation would

constitute a sufficient change in circumstances so as to warrant

a recalculation of child support pursuant to the Child Support

Standards Act. In February 2013, the husband moved to, among

other things, terminate his maintenance obligation on the basis

of the wife's alleged cohabitation with her paramour. The wife

opposed the motion and cross-moved for an upward modification of

child support based upon an increase in the husband's income.

Supreme Court, among other things, denied the wife's cross

motion, partially granted the husband's motion and terminated his

obligation to pay maintenance. The wife appeals. 

The wife's sole contention on this appeal is that Supreme

Court erred in denying without a hearing her request for an

upward modification of the husband's child support obligation. 

We do not agree. The increase in the husband's income does not,

standing alone, constitute a sufficient basis upon which to grant

an upward modification of child support (see Matter of Overbaugh

v Schettini, 103 AD3d 972, 974 [2013], lv denied 21 NY3d 854

[2013]; Hejna v Reilly, 26 AD3d 709, 711 [2006]). While the

parties did agree that termination of the husband's maintenance

obligation would constitute a sufficient change in circumstances

for the purpose of recalculating child support, the wife failed

to submit a sworn statement of net worth, as required by 22 NYCRR

202.16 (k) (2), or any other financial documentation in support

of her cross motion. Under such circumstances, Supreme Court

acted well within its discretion in summarily denying the wife's

application without prejudice to renewal (see 22 NYCRR 202.16

[k] [5] [ii]; Rech v Rech, 122 AD3d 1286, 1287 [2014], lv denied

25 NY3d 905 [2015]; Garcia v Garcia, 104 AD3d 806, 806 [2013];

see also Bertone v Bertone, 15 AD3d 326, 326 [2005]; cf. Matter

of McDonald v McDonald, 112 AD3d 1105, 1106 [2015]). 

Lahtinen, Garry and Rose, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court