Bagnoli v. Bagnoli

Mercare, J. Appeal from an order of the Family Court of Albany County (Tobin, J.), entered November 5, 1993, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 4, to modify respondent’s child support obligation. Based upon our review of the record, it is our view that petitioner failed to establish either an unanticipated and unreasonable change in circumstances (see, Matter of Boden v Boden, 42 NY2d 210, 213) or that she is no longer able to meet the children’s needs (see, Matter of Brescia v Fitts, 56 NY2d 132, 140-141). We accordingly affirm Family Court’s order dismissing petitioner’s application. The Hearing Examiner found (and petitioner does not dispute) that petitioner’s annual income increased from $26,000 to $26,500 from the time of the November 1987 judgment of divorce, which incorporated but did not merge the parties’ separation agreement, to the instant application in 1992. During the same period, petitioner’s claimed total monthly expenses increased by only $100 and, of greatest relevance here, those expenses directly related to child rearing actually decreased, primarily due to a substantial reduction in petitioner’s child care expense. In the absence of any claim that the parties’ agreement was unfair or unreasonable when entered into or unconscionable at the time of their divorce (Domestic Relations Law § 236 [B] [3]), and in view of the increase in petitioner’s income and decrease in the cost of raising the children, the application was properly denied (see, Katz v Katz, 188 AD2d 827). That Family Court’s calculations were improperly based on petitioner’s gross income less FICA does not require a different result. Finally, respondent’s modest salary increase over the relevant period, totaling less than 5% per year, will not of itself justify modification of the child support provision of the parties’ judgment of divorce (see, Matter of Popp v Raitano, 167 AD2d 404). Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, without costs.