Sorrentino v. Sorrentino

Casey, J.

(dissenting). A review of the record convinces us that petitioner failed to meet her burden to demonstrate a change in circumstances which warrants an increase in child support. A generalized claim that children’s needs have increased either because the children have matured or due to inflation is insufficient (see, Zucker v Zucker, 187 AD2d 507, 509), but evidence of specific increased expenses will support a finding of a change in circumstances warranting an increase in child support (supra, at 509; see, Matter of Adams-Eppes v Fulton, 195 AD2d 455, 456). Although petitioner provided specific dollar amounts of increases in certain expenses, the record also establishes that other expenses decreased, resulting in a net increase in petitioner’s monthly expenses of approximately 5%, which is no more than would ordinarily result from inflation over the period of time involved in this case. Family Court also relied upon a $5,000 tuition expense claimed by petitioner, but the claim was based upon pure speculation as to what might or might not happen in the future.

The majority concludes that the increase in respondent’s income was, in and of itself, sufficient to constitute a change in circumstances, citing Matter of Chariff v Carl (191 AD2d 795, 796). In the Chariff case, however, the noncustodial parent enjoyed a six-fold increase in income (see also, Eisen v Eisen, 48 AD2d 652 [four-fold increase]; but see, Edwards v Edwards, 62 AD2d 1027). Here, the increase in respondent’s income was less than 30%. In Matter of McFarlane v McFarlane (182 AD2d 1024, 1025), we concluded that the evidence did not show the type of change in income that would be sufficient, in and of itself, to justify a modification of child support. Examination of the record in the McFarlane case discloses that the noncustodial parent’s income increased about 40%. In Matter of Popp v Raitano (167 AD2d 404), the noncustodial parent’s income more than doubled from one year to the next, but the Second Department held that the *832increase was "not itself determinative” of whether an upward modification of child support was warranted (supra, at 405).

It is our view that the McFarlane and Popp cases (supra) represent the general rule that an increase in child support is not warranted simply because the noncustodial parent is now making more money (see, Matter of Tripi v Faiello, 195 AD2d 958, lv dismissed 82 NY2d 803; Matter of Rogers v Bittner, 181 AD2d 990). The Chariff case is based upon an exception to the general rule which comes into play only when the magnitude of the increase in the noncustodial parent’s income far exceeds that involved in this case. In the circumstances of this case, the increase in respondent’s income is a factor to be considered, along with all of the other relevant factors, in determining whether an upward modification of child support is warranted (see, Matter of Adams-Eppes v Fulton, supra, at 456; Matter of Popp v Raitano, supra, at 405). Consideration must also be given to the increase in petitioner’s income during the relevant time period (see, Matter of Levy v Levy, 193 AD2d 801, 802). Taking into account the increases in both parties’ incomes, and considering the minimal increase in expenses demonstrated by petitioner, it is our view that no upward modification of child support is warranted. Accordingly, we would reverse Family Court’s order and dismiss the petition.

Mercure, J., concurs. Ordered that the order is modified, on the law and the facts, without costs, by reducing respondent’s monthly support obligation to $1,333, and, as so modified, affirmed.