Sacco v. Sacco

Order affirmed, with costs. Memorandum: We find no abuse of discretion in Family Court’s upward modification of the child support provisions of the decree. Between May 29, 1970, when the parties entered into the separation agreement, and October 27, 1977, when the modification hearing was held, respondent’s annual income had increased from $9,500 to approximately $50,000, tax-free. The proof at the hearing was that petitioner, who had been unemployed at the time of the agreement, had earned $1,396 in 1976 and $2,000 in 1977. This drastic widening of the difference between the respective incomes of the parties, unanticipated at the time the agreement was signed, constitutes an unforeseen change in circumstances sufficient to warrant a modification under Matter of Boden v Boden (42 NY2d 210, 213). While $25 per week per child undoubtedly represented a fair and equitable division of the financial burden of child support when respondent’s income was $9,500, it can hardly be said to be so when his income has increased over fivefold. We do not agree that petitioner failed to show the requisite need for additional support (Matter of Boden v Boden, supra, p 213). Respondent’s attorney conceded that the children have needs which petitioner cannot afford to meet. It appears that it has been necessary for respondent to supplement the mandated support payments by buying the children sports equipment, clothes, shoes, books, appliances, etc. That respondent voluntarily meets the needs of the children does not alter the fact that absent his voluntary assistance the support payments required by the decree are inadequate to meet those needs. Indeed, the fact that he must give such additional assistance establishes the inadequacy of the stipulated payments. All concur, except Callahan and Witmer, JJ., who dissent and vote to reverse the order and dismiss the petition in the following memorandum.