Verrone v. Voegtle

— Order unanimously reversed with costs and matter remitted to Supreme Court, Monroe County, for a hearing, in accordance with the following memorandum: Petitioner appeals from denial of her motion for an upward modification of child support. Petitioner alleges that 1006 the current level of support for the children is inadequate and that there has been a change in circumstances in the eight-year period since the parties were divorced, including increased expenses because of the children’s growing older, increased cost of living, and substantial improvement in respondent’s financial condition. If proven, such allegations may be sufficient indicia of changed circumstances to warrant an increase in child support (Matter of Brescia v Fitts, 56 NY2d 132, 141). “When a party seeks modification of a prior support order based upon a change in circumstances, the court should conduct a full hearing to determine whether the alleged change warrants modification (see Huber v Huber, 59 AD2d 1063; Matter of Monesi v Monesi, 55 AD2d 1020; Rollins v Rollins, 33 AD2d 990)” (Van Niel v Van Niel, 93 AD2d 986). It was thus error for Special Term to dismiss the petition without conducting an evidentiary hearing on the issues raised in the petition. $ Respondent contends that these financial issues were litigated during a child custody proceeding held two years earlier which resulted in a court order entered only seven months prior to the instant motion; however, respondent does not contradict petitioner’s sworn statement that she was advised by counsel not to seek an increase in child support during the custody proceeding and did not do so. There is no indication in the record or in the decision on the prior proceeding that the adequacy of child support was considered in that proceeding. Petitioner is thus entitled to a hearing for resolution of the issues raised in her petition. (Appeal from order of Supreme Court, Monroe County, Boehm, J. — support.) Present — Hancock, Jr., J. P., Callahan, Denman, Moule and Schnepp, JJ.