        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

68
CA 14-01343
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND WHALEN, JJ.


RONALD P. LEO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PAMELA S. LEO, DEFENDANT-RESPONDENT.


DADD, NELSON, WILKINSON & WUJCIK, ATTICA (JENNIFER M. WILKINSON OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

WILLIAM R. HITES, BUFFALO, FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (John F. O’Donnell, J.), entered October 17, 2013.
The order and judgment, among other things, denied the motion of
plaintiff to terminate or reduce his payments to defendant for
maintenance and a distributive award.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Pursuant to the parties’ 1998 separation agreement,
which was incorporated but not merged into the judgment of divorce,
plaintiff, inter alia, agreed to pay defendant $1,666.66 in
maintenance per month and a distributive award of $1,058.80 per month;
to maintain a $250,000 life insurance policy for the benefit of
defendant; and to provide defendant with health and dental insurance.
The monthly distributive award was subsequently modified to $700 per
month by court order. In September 2011, plaintiff moved to terminate
or reduce his obligations to defendant based on financial hardship,
and, in May 2012, defendant cross-moved for enforcement of plaintiff’s
obligations under the separation agreement. Supreme Court denied
plaintiff’s motion and granted defendant’s cross motion. We affirm.

     Contrary to the parties’ contentions with respect to the burden
of proof to be applied when a party seeks to reduce the amount of
maintenance set forth in a separation agreement that has been
incorporated but not merged into a judgment of divorce, that party has
the burden of establishing “extreme hardship” (Domestic Relations Law
§ 236 [B] [9] [b] [1]; see Marrano v Marrano, 23 AD3d 1104, 1105;
Mishrick v Mishrick, 251 AD2d 558, 558). Under the particular
circumstances presented here, and giving due deference to the court’s
credibility determinations (see generally Quarty v Quarty, 96 AD3d
1274, 1277), we perceive no error in the court’s denial of plaintiff’s
motion to modify his obligations under the separation agreement (see
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                                                         CA 14-01343

Barden v Barden, 245 AD2d 695, 696; cf. Marrano, 23 AD3d at 1105;
Malaga v Malaga, 17 AD3d 642, 643).

     We further conclude that plaintiff “knowingly, consciously and
voluntarily disregarded the obligation under a lawful court order”
(Domestic Relations Law § 244), and that the court therefore did not
err in finding that plaintiff’s failure to make the required payments
to defendant from October 2011 to September 2013 was willful (see
Rainey v Rainey, 83 AD3d 1477, 1480).




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
