Opinion
March 17, 1995
Appeal from the Monroe County Family Court, Bonadio, J.
Present — Green, J.P., Wesley, Callahan, Doerr and Davis, JJ.
Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Family Court erred in granting the petition for an upward modification of the child support provisions in the parties' judgment of divorce. Those provisions incorporated and merged the parties' stipulation, thus the applicable test was whether there had been a change of circumstances such that it is in the best interests of the child to grant an increase in child support (see, Matter of Brescia v Fitts, 56 N.Y.2d 132, 140; Matter of Rogers v. Bittner, 181 A.D.2d 990; Matter of Bruhn v. McCready, 138 A.D.2d 374, 376). Petitioner failed to sustain her burden of proof. Respondent's increase in income is only one factor to consider when determining whether an upward modification is warranted (see, Matter of Rogers v Bittner, supra; Matter of Sutton v. Sutton, 178 A.D.2d 980; Matter of Popp v. Raitano, 167 A.D.2d 404; Matter of Goldstein v. Pesato, 77 A.D.2d 878; cf., Matter of Commissioner of Social Servs. of City of N.Y. [Jacobs] v. Currie, 182 A.D.2d 433, 434). Respondent's increase in income was not unanticipated and had been considered in fixing the terms of the parties' stipulation, which included respondent's agreement to pay for the child's college education. Moreover, petitioner failed to demonstrate that the present needs of the child were not being met at the present level of support (see, Matter of Murrin v. Murrin, 186 A.D.2d 567, 568). The increased cost of sports activities was offset by the fact that the child attends school full-time and no longer requires full-time daycare (see, Matter of Rogers v. Bittner, supra).