Kandus v. Forlenza

Appeal by the plaintiff from an order of the Supreme Court, Westchester County (Colleen D. Duffy, J.), entered September 13, 2013. The order, insofar as appealed from, denied the plaintiffs motion for an upward modification of the defendant’s child support obligation pursuant to the parties’ separation agreement, and for an award of counsel fees. Ordered that the order is affirmed insofar as appealed from, with costs. The parties’ separation agreement, which set forth the parties’ child support obligations, was executed in 2005, prior to the effective date of the 2010 amendments to the Domestic Relations Law (see L 2010, ch 182, § 13). Therefore, in order to establish her entitlement to an upward modification of the defendant’s child support obligation, the plaintiff had the burden of establishing a substantial, unanticipated, and unreasonable change in circumstances resulting in a concomitant need, or that the agreement was not fair and equitable when entered into (see Matter of Gravlin v Ruppert, 98 NY2d 1, 5 [2002]; Zaratzian v Abadir, 128 AD3d 953 [2015]; Matter of Suchan v Eagar, 121 AD3d 910 [2014]; Nelson v Nelson, 75 AD3d 593, 593-594 [2010]), or that the reasonable needs of the child are not being met (see Matter of Brescia v Fitts, 56 NY2d 132, 140 [1982]; Nelson v Nelson, 75 AD3d 593, 593-594 [2010]; Matter of Alexander v Strathairn, 69 AD3d 930, 931 [2010]). Here, the plaintiff failed to meet that burden. Although the defendant relocated to the Czech Republic for an extended period of time to fulfill the responsibilities of his employment, the plaintiff failed to offer proof that this affected her expenses, or the children’s needs (see Matter of Alexander v Strathairn, 69 AD3d at 931). Under the circumstances here, the denial of counsel fees to the plaintiff was a provident exercise of discretion (see DeCabrera v Cabrera-Rosete, 70 NY2d 879, 880 [1987]; Matter of Alexander v Strathairn, 69 AD3d at 931). The plaintiff’s remaining contentions are without merit. Hall, J.R, Austin, Sgroi and Hinds-Radix, JJ., concur.