Decisions of Interest

Norman v. Dykman Post Judgment Maintenance

December 21st, 2009

Norman, Appellant, v Dykman, Respondent. (Index No. 27748/96)

2004-03452

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2005 NY Slip Op 8294; 23 A.D.3d 358; 808 N.Y.S.2d 80; 2005 N.Y. App. Div. LEXIS 12315

November 7, 2005, Decided

COUNSEL: Fisher & Golden, P.C., East Hampton, N.Y. (Karen Golden of counsel), for appellant.

Kramer & Rabinowitz, LLC, Commack, N.Y. (Debra L. Rubin of counsel), for respondent.

JUDGES: THOMAS A. ADAMS, J.P., DANIEL F. LUCIANO, PETER B. SKELOS, ROBERT A. LIFSON, JJ. ADAMS, J.P., LUCIANO, SKELOS and LIFSON, JJ., concur.

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 AD2d 286, 287, 745 NYS2d 917 [2002]; seePintus v Pintus, 104 AD2d 866, 867-868, 480 NYS2d 501 [1984]; 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 NY2d 210, 213, 366 NE2d 791, 397 NYS2d 701 [1977]; Praeger v Praeger, 162 AD2d 671, 673, 557 NYS2d 394 [1990]; Nordhauser v Nordhauser, 130 AD2d 561, 562, 515 NYS2d 501 [1987]). 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 AD3d 1107, 803 NYS2d 603 [2005]; Dodaro v Dodaro, 269 AD2d 420, 702 NYS2d 905 [2000]). 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 AD3d 471, 790 NYS2d 718 [2005]; Matter of Timson v Timson, 5 AD3d 691, 774 NYS2d 751 [2004]).

The plaintiff’s remaining contentions are without merit. Adams, J.P., Luciano, Skelos and Lifson, JJ., concur.


7 Responses to “Norman v. Dykman Post Judgment Maintenance”

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