Opinion
June 7, 1991
Appeal from the Erie County Family Court, O'Donnell, J.
Present — Callahan, J.P., Denman, Balio, Lawton and Lowery, JJ.
Order unanimously reversed on the law without costs and petition denied. Memorandum: Family Court erred in granting the petition for an upward modification of child support. The parties' separation agreement provided that the amount of child support was based on the parties' income at the "time of the divorce". The only direct evidence of respondent's income at the time of the divorce was his statement that he was earning $40,000 per year. That statement was supported by his 1988 tax return. When petitioner commenced this proceeding some 18 months later, respondent was still earning approximately $40,000 per year. Given those circumstances, petitioner's proof failed to establish an unanticipated and unreasonable change of circumstances to support an upward modification of child support (see, Matter of Boden v Boden, 42 N.Y.2d 210, 213).