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

1283
CA 15-00863
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, AND WHALEN, JJ.


CARLA M. MANCUSO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL D. MANCUSO, DEFENDANT-APPELLANT.


DAVIDSON FINK LLP, ROCHESTER (DONALD A. WHITE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

DENTINO, CAMMARATA & FAZIO, LLC, ROCHESTER (MICHAEL PAUL OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Elma A.
Bellini, J.), entered December 22, 2014. The order, insofar as
appealed from, granted that part of plaintiff’s motion seeking an
upward modification of child support.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs and that part of the
motion seeking an upward modification of child support is denied.

     Memorandum: Defendant appeals from an order that, insofar as
appealed from, granted that part of plaintiff’s motion for an upward
modification of child support. We agree with defendant that Supreme
Court erred in concluding that it was required to recalculate child
support upon the termination of defendant’s maintenance obligation and
in granting that part of plaintiff’s motion on that ground. The
judgment of divorce reflected an award of child support to plaintiff
in which defendant’s maintenance payments had been deducted from his
income in calculating child support, but there was no provision in the
judgment for an adjustment to child support upon the termination of
maintenance, as required by Domestic Relations Law § 240 (1-b) (b) (5)
(vii) (C) (see Antinora v Antinora, 125 AD3d 1336, 1338; Lazar v
Lazar, 124 AD3d 1242, 1244-1245). Neither party took an appeal from
the judgment of divorce, however, and we conclude that the court erred
in essentially correcting the error upon plaintiff’s subsequent
request for a modification of child support (see generally Matter of
Baker v Baker, 291 AD2d 751, 752-753). Rather, plaintiff was required
to show a substantial change in circumstances warranting an upward
modification of child support (see § 236 [B] [9] [b] [2] [i]), and we
conclude that she failed to make that showing.

     “Among the factors to be considered in determining whether there
has been a change in circumstances warranting an upward modification
                                 -2-                          1283
                                                         CA 15-00863

of support are the increased needs of the children, the increased cost
of living insofar as it results in greater expenses for the children,
a loss of income or assets by a parent or a substantial improvement in
the financial condition of a parent, and the current and prior
lifestyles of the children” (Matter of DiGiorgi v Buda, 26 AD3d 434,
434 [internal quotation marks omitted]; see Shedd v Shedd, 277 AD2d
917, 917-918, lv dismissed 96 NY2d 754). “ ‘While an increase in the
noncustodial parent’s income is a factor which may be considered in
deciding whether to grant an upward modification of child support,
this factor alone is not determinative’ ” (DiGiorgi, 26 AD3d at 434).

     Here, the record establishes that defendant’s income had
decreased since the judgment was entered, and therefore the
termination of his maintenance obligation would result in only a small
increase in his income. Although plaintiff contends that the
termination of maintenance resulted in a substantial change in her
income, she failed to show that she would be unable to replace that
lost income through employment. Indeed, in recalculating defendant’s
child support obligation, the court imputed income to plaintiff in the
amount she had been receiving in maintenance (see Belkhir v Amrane-
Belkhir, 118 AD3d 1396, 1397-1398; Irene v Irene [appeal No. 2], 41
AD3d 1179, 1180-1181). Plaintiff failed to demonstrate any other
factors in support of an upward modification in child support inasmuch
as she did not introduce any evidence of increased needs of the
children, a loss of assets, or a change in the current and prior
lifestyles of the children (see Matter of Rosenthal v Buck, 281 AD2d
909, 909-910; Matter of Faery v Piedmont, 181 AD2d 1014, 1014).




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
