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Mitchell v. Mitchell

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


November 25, 2008

THOMAS J. MITCHELL, RESPONDENT,
v.
KATHLEEN A. MITCHELL, APPELLANT.

In a matrimonial action in which the parties were divorced by judgment dated June 29, 1994, the defendant appeals from an order of the Supreme Court, Westchester County (Scarpino, J.), entered July 3, 2007, which denied, without a hearing, her motion for an upward modification of maintenance.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., ROBERT A. LIFSON, FRED T. SANTUCCI & EDWARD D. CARNI, JJ.

(Index No. 17329/91)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith.

Contrary to the plaintiff's contention, the defendant's motion sufficiently set forth a claim for relief on the ground that her inability to be self-supporting entitled her to an upward modification of maintenance (see Domestic Relations Law § 236 [B][9][b]; Wyser-Pratte v Wyser-Pratte, 66 NY2d 715; Wong v Wong, 300 AD2d 473, 474).

Accordingly, it was not necessary for the defendant to establish a substantial change in circumstances in order to be entitled to a hearing on whether modification is warranted (see Wyser-Pratte v Wyser-Pratte, 66 NY2d at 716-717).

Inasmuch as it cannot be said on this record that the defendant's allegations of her inability to be self-supporting were insufficient as a matter of law, the Supreme Court erred in denying her motion without a hearing. Accordingly, the matter should be remitted to the Supreme Court, Westchester County, for a hearing on the defendant's motion.

The plaintiff's remaining contentions are without merit.

SKELOS, J.P., LIFSON, SANTUCCI and CARNI, JJ., concur.

20081125

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