Opinion
Argued May 15, 2000
August 30, 2000.
In a support proceeding pursuant to Family Court Act article 4, the petitioner former wife appeals, by permission, from an order of the Family Court, Nassau County (Pessala, J.), dated September 20, 1999, which granted the objections of the former husband to an order of the same court (Dwyer, H.E.), dated June 17, 1999, dismissing his petition for downward modification of his maintenance and support payments, and remitted the matter to the Hearing Examiner for a new hearing and a new determination.
Mark D. Imber, Garden City, N.Y., for appellant.
Steven A. Meisner, Garden City, N.Y., for respondent.
SONDRA MILLER, J.P., MYRIAM J. ALTMAN, HOWARD MILLER, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
It is well settled that the court may modify a prior order or judgment of child support or maintenance payments upon a showing of a "substantial change in circumstances" (Domestic Relations Law § 236[B][9][b]; Klapper v. Klapper, 204 A.D.2d 518; Schnoor v. Schnoor, 189 A.D.2d 809; Dowd v. Dowd, 178 A.D.2d 330). The party seeking the modification has the burden of establishing the existence of a change in circumstances warranting the modification (see, Klapper v. Klapper, supra). In determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor's financial situation at the time of the application for a downward modification with that at the time of the order or judgment (see, Klapper v. Klapper, supra; Schnoor v. Schnoor, supra).
The former husband presented genuine issues of fact regarding whether he will suffer extreme hardship if the maintenance and support terms of the judgment of divorce are not modified and, accordingly, the Family Court properly granted a hearing to determine whether modification is warranted (see, Soba v. Soba, 213 A.D.2d 472; Grimaldi v. Grimaldi, 167 A.D.2d 443; Heath v. Heath, 128 A.D.2d 587).