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Lee v. Lee

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 22, 2009

DONALD LEE, PETITIONER-RESPONDENT,
v.
ELIZABETH LEE, RESPONDENT-APPELLANT.

Order, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about September 3, 2008, which, insofar as appealed from, denied respondent wife's objections to the Support Magistrate's order that, inter alia, granted petitioner husband's petition for a downward modification of his spousal maintenance obligation and denied respondent's application for attorney's fees, unanimously modified, on the law and the facts, to grant respondent's objection pertaining to the downward modification of spousal maintenance, the payment schedule of $5,800 per month reinstated and otherwise affirmed, without costs.

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.

Mazzarelli, J.P., Nardelli, Catterson, DeGrasse, RomÁn, JJ.

The downward modification of spousal maintenance was improperly granted as the record does not support the finding that petitioner demonstrated a "substantial change in financial circumstances" as required in the parties' stipulation with respect to maintenance, which was merged into the judgment of divorce. Indeed, petitioner's current overall income is greater than his income at the time of the divorce and he continues to maintain a lavish lifestyle (see McCarthy v McCarthy, 11 AD3d 402 [2004], lv dismissed in part, denied in part 4 NY3d 793 [2005]; Dunnan v Dunnan, 293 AD2d 345 [2002]). Nor does respondent's post-divorce receipt of social security benefits and payments from petitioner's pension constitute a substantial change in financial circumstances sufficient to have warranted the downward modification (see Block v Block, 277 AD2d 87 [2000]; Wells v Wells, 242 AD2d 934 [1997]).

The denial of respondent's application for counsel fees was a provident exercise of discretion under the circumstances (see Matter of Lawrence v Lawrence, 187 AD2d 995 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091222

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