Opinion
May 31, 1996
Appeal from the Ontario County Family Court, Harvey, J.
Present — Pine, J.P., Fallon, Callahan, Doerr and Davis, JJ.
Order unanimously reversed on the law without costs, objections sustained, order of Hearing Examiner vacated and petition dismissed. Memorandum: Family Court erred in granting the petition seeking an upward modification of respondent's child support obligation set forth in the parties' separation agreement, which was incorporated but not merged in the judgment of divorce. From our review of the record, we conclude that petitioner failed to meet her burden of establishing either an unanticipated and unreasonable change in circumstances ( see, Matter of Boden v. Boden, 42 N.Y.2d 210, 213) or that the children's needs are not being met ( see, Matter of Brescia v Fitts, 56 N.Y.2d 132, 141; Kinsella v. Kinsella, 206 A.D.2d 889, 890; Matter of Tripi v. Faiello, 195 A.D.2d 958, lv dismissed 82 N.Y.2d 803).