

Kandus v Forlenza (2015 NY Slip Op 07624)





Kandus v Forlenza


2015 NY Slip Op 07624


Decided on October 21, 2015


Appellate Division, Second Department


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.



Decided on October 21, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

L. PRISCILLA HALL, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
SYLVIA O. HINDS-RADIX, JJ.


2014-00068
 (Index No. 10127/05)

[*1]Petra Kandus, formerly known as Petra Forlenza, appellant, 
vRiccardo Forlenza, respondent.


Swidler & Messi, LLP, New York, N.Y. (Steven A. Swidler of counsel), for appellant.
Guttridge & Cambareri, P.C., Tarrytown, N.Y. (John C. Guttridge and Scott Stone of counsel), for respondent.

DECISION & ORDER
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 plaintiff's 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; Zaratzian v Abadir, 128 AD3d 953; Matter of Suchan v Eagar, 121 AD3d 910; Nelson v Nelson, 75 AD3d 593, 593-594), or that the reasonable needs of the child are not being met (see Matter of Brescia v Fitts, 56 NY2d 132, 140; Nelson v Nelson, 75 AD3d 593, 593-594; Matter of Alexander v Strathairn, 69 AD3d 930, 931).
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; Matter of Alexander v Strathairn, 69 AD3d at 931).
The plaintiff's remaining contentions are without merit.
HALL, J.P., AUSTIN, SGROI and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


