                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 29, 2015                    520622
________________________________

ROBERT W. GRACE,
                     Respondent,
     v
                                             MEMORANDUM AND ORDER
JULIE B. GRACE,
                     Appellant.

(And a Related Proceeding.)
________________________________


Calendar Date:    September 9, 2015

Before:   Peters, P.J., Lahtinen, Garry and Rose, JJ.

                              __________


     Cynthia Feathers, Glens Falls, for appellant.

      Frost & Kavanaugh, PC, Troy (David J. Kavanaugh of
counsel), for respondent.

                              __________


Peters, P.J.

      Appeal from an order of the Supreme Court (Zwack, J.),
entered July 8, 2014 in Rensselaer County, which, among other
things, denied defendant's cross motion to modify a prior order
of child support.

      Plaintiff (hereinafter the husband) and defendant
(hereinafter the wife) are the divorced parents of five children
(born in 1997, 1999, 2003 and 2005). Pursuant to an oral
stipulation of settlement that was incorporated but not merged
into the parties' 2011 judgment of divorce, the husband agreed to
pay the wife $16,500 annually in child support, which represented
a downward deviation from the Child Support Standards Act (see
Domestic Relations Law § 240 [1-b]), as well as $28,000 annually
                              -2-                520622

in maintenance for five years. The stipulation further provided
that a termination of the husband's maintenance obligation would
constitute a sufficient change in circumstances so as to warrant
a recalculation of child support pursuant to the Child Support
Standards Act. In February 2013, the husband moved to, among
other things, terminate his maintenance obligation on the basis
of the wife's alleged cohabitation with her paramour. The wife
opposed the motion and cross-moved for an upward modification of
child support based upon an increase in the husband's income.
Supreme Court, among other things, denied the wife's cross
motion, partially granted the husband's motion and terminated his
obligation to pay maintenance. The wife appeals.

      The wife's sole contention on this appeal is that Supreme
Court erred in denying without a hearing her request for an
upward modification of the husband's child support obligation.
We do not agree. The increase in the husband's income does not,
standing alone, constitute a sufficient basis upon which to grant
an upward modification of child support (see Matter of Overbaugh
v Schettini, 103 AD3d 972, 974 [2013], lv denied 21 NY3d 854
[2013]; Hejna v Reilly, 26 AD3d 709, 711 [2006]). While the
parties did agree that termination of the husband's maintenance
obligation would constitute a sufficient change in circumstances
for the purpose of recalculating child support, the wife failed
to submit a sworn statement of net worth, as required by 22 NYCRR
202.16 (k) (2), or any other financial documentation in support
of her cross motion. Under such circumstances, Supreme Court
acted well within its discretion in summarily denying the wife's
application without prejudice to renewal (see 22 NYCRR 202.16
[k] [5] [ii]; Rech v Rech, 122 AD3d 1286, 1287 [2014], lv denied
25 NY3d 905 [2015]; Garcia v Garcia, 104 AD3d 806, 806 [2013];
see also Bertone v Bertone, 15 AD3d 326, 326 [2005]; cf. Matter
of McDonald v McDonald, 112 AD3d 1105, 1106 [2015]).

     Lahtinen, Garry and Rose, JJ., concur.
                        -3-                  520622

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
