Appeal from an order of the Family Court of St. Lawrence County (Nelson, J.), entered October 13, 1987, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 4, for an upward modification of child support.
Petitioner and respondent produced two boys, one born in August 1976 and the other in May 1978, during their marriage, which ended in a divorce judgment filed September 5, 1985, incorporating but not merging a separation agreement
In November 1986, petitioner initiated the instant proceeding seeking restoration of her maintenance support and augmented child support based upon a change of circumstances. Family Court dismissed the maintenance request and held a hearing on the issue of child support. Significant facts disclosed at the hearing included an increase in respondent’s income from $41,026 in 1985 to $47,038 in 1986, with a 5.5% raise due in 1987, while petitioner’s income remained steady at just over $11,000, due to the loss of maintenance. On the other side, petitioner had additional expenses, due in part to the purchase of a modest home. It is also pertinent to note that respondent’s disposable income has been effectively enhanced by elimination of his liability for maintenance despite the fact that it was a result of petitioner’s own doing.
Family Court awarded a $300 per month increase in child support based on respondent’s improved financial position, especially when contrasted with petitioner’s, the children’s additional need and a finding that the child support provided for in the separation agreement was grossly unfair. Family Court expressly disregarded those of petitioner’s expenses attributable to the child of her second marriage in making its determination. Respondent appeals; we affirm.
Family Court possesses jurisdiction to modify child support provisions even when the terms flow from a separation agreement incorporated without merger into a divorce decree, and absent an abuse of discretion its determination will not be disturbed (Merl v Merl, 67 NY2d 359, 362; Matter of Aiken v Aiken, 115 AD2d 919, 920-921). Here, Family Court directly applied the factors set forth in Matter of Brescia v Fitts (56 NY2d 132, 141) for evaluating whether a particular change in
Order affirmed, with costs. Mahoney, P. J., Weiss, Mikoll, Yesawich, Jr., and Levine, JJ., concur.