Opinion
16427N 156545/13.
12-15-2015
Lori A. BORES, Plaintiff–Appellant, v. William G. BORES, Defendant–Respondent.
Andrew C. Risoli, Eastchester, for appellant. Nicholas J. Ferrar, Garden City, for respondent.
Andrew C. Risoli, Eastchester, for appellant.
Nicholas J. Ferrar, Garden City, for respondent.
Opinion
Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered on or about May 22, 2014, which, to the extent appealed from as limited by the briefs, granted defendant's motion (1) to be appointed as a temporary receiver of the marital property, (2) for a money judgment against plaintiff in the amount of $6,401.82 for unreimbursed medical expenses, and (3) for legal fees in the amount of $3,500; and denied plaintiff's cross motion for downward modification of her child support obligation, unanimously affirmed, without costs.
Plaintiff's argument that the motion court improperly appointed defendant as a receiver to effectuate a sale of the marital residence has been rendered academic by defendant's unrefuted claim that the residence was sold during the pendency of this appeal (see Matter of Huntington Hebrew Congregation of Huntington v. Tanenbaum, 62 A.D.3d 704, 705, 877 N.Y.S.2d 899 2d Dept.2009, lv. dismissed in part, denied in part 13 N.Y.3d 854, 891 N.Y.S.2d 688, 920 N.E.2d 92 2009 ). In any event, the appointment was proper, given plaintiff's obstruction and delaying tactics (Stern v. Stern, 282 A.D.2d 667, 668, 723 N.Y.S.2d 514 2d Dept.2001 ), and given the “acrimonious relationship between the parties” (Lutz v. Goldstone, 42 A.D.3d 561, 563, 840 N.Y.S.2d 620 2d Dept.2007 ).
The motion court properly awarded $6,401.82 to defendant for the unreimbursed medical expenses of the parties' infant child. The parties' judgment of divorce specifically provided that plaintiff would contribute 52.5% of the unreimbursed medical expenses, and she failed to do so. She also failed to dispute the amount owed.
Plaintiff failed to show a substantial change in circumstances to warrant a downward modification of her child support obligation (Domestic Relations Law § 236B9[b]2[i]; Matter of Parascandola v. Aviles, 59 A.D.3d 449, 450, 874 N.Y.S.2d 150 2d Dept.2009 ). Plaintiff's monthly income had actually increased from the time of the initial child support determination, and she failed to show that her overall claimed expenses had significantly changed from that time. We decline to consider her challenges to the Referee's initial child support recommendation, since she never appealed from the order confirming the Referee's report, nor did she appeal from the judgment of divorce, which incorporated the order (see Angel v. O'Neill, 114 A.D.3d 486, 486, 979 N.Y.S.2d 806 1st Dept.2014, lv. dismissed in part, denied in part 24 N.Y.3d 933, 993 N.Y.S.2d 545, 17 N.E.3d 1142 2014 ).
The motion court's award of counsel fees to defendant in the amount of $3,500 was reasonable and a provident exercise of its discretion (see Domestic Relations Law § 238; Roiphe v. Roiphe, 98 A.D.2d 676, 676, 469 N.Y.S.2d 410 1st Dept.1983 ), particularly given the validity of defendant's enforcement motion and plaintiff's failure to offer, in most instances, any valid defenses to defendant's multiple claims of nonpayment.
We have considered plaintiff's remaining contentions and find them unavailing.