Opinion
April 23, 1996
Appeal from the Supreme Court, Bronx County (Susan Larabee, J.).
Respondent husband's child support obligation was appropriately increased on the ground that petitioner wife's income and the amount of child support originally agreed to were inadequate to meet the child's present needs ( Brescia v. Fitts, 56 N.Y.2d 132). Although the husband's annual income had decreased slightly between the date the parties signed the separation agreement and the date the wife moved for an increase in child support, his hourly wages had increased by approximately 12% and he failed to provide sufficient evidence to justify his failure to meet his earning potential by working overtime and as a substitute teacher, as he had previously done ( Hickland v. Hickland, 39 N.Y.2d 1, 5-6, cert denied 429 U.S. 941). For her part, the evidence established that her decision to go back to school was made in good faith ( compare, Matter of Robesena W. v. George B.D., 145 A.D.2d 426, with Ferlo v. Ferlo, 152 A.D.2d 980), and that it was a substantial change in circumstances for the husband to cease babysitting 25 hours a week for the parties' child and to cease giving the wife $570 a month to hire a babysitter in his place. Viewed as a whole, these circumstances rise to the level required in Brescia v. Fitts ( supra), and justify the court's substantial increase in child support, bringing the husband's obligation in line with the Child Support Standards Act guidelines.
Concur — Murphy, P.J., Sullivan, Ellerin, Nardelli and Mazzarelli, JJ.