Opinion
May 10, 1993
Appeal from the Supreme Court, Kings County (Rigler, J.).
Ordered that the orders are affirmed, with one bill of costs.
The parties were divorced by judgment dated January 10, 1991. By notice of appeal dated February 14, 1991, the defendant appealed various provisions of the divorce judgment. By order dated October 11, 1991, this Court dismissed that appeal for lack of prosecution.
The dismissal of the defendant's appeal from the judgment of divorce is relevant in that it is generally held that a litigant may not raise any issue on a subsequent appeal which was raised, or could have been raised, in an earlier appeal which was dismissed for lack of prosecution (see, Bray v Cox, 38 N.Y.2d 350; see also, People v Corley, 67 N.Y.2d 105, 109; cf., Aridas v Caserta, 41 N.Y.2d 1059, 1061). In the context of this case, this rule precludes the defendant's challenges to the valuation of the plaintiff's Master of Business Administration degree, the court's determination of child support, the retroactive fixing of child support arrears, and the court's award of additional legal fees to the plaintiff's counsel, all of which could have been raised on the prior appeal from the divorce judgment.
The defendant's demand for the downward modification of his child support obligation must also fail. A prior order of child support may be modified upon a showing of a substantial change in circumstances (see, Domestic Relations Law § 236 [B] [9] [b]). It is the burden of the moving party to establish the change in circumstance warranting the modification (see, Carr v Carr, 187 A.D.2d 407; Clemente v Clemente, 186 A.D.2d 620; Matter of Ciostek v Ciostek, 186 A.D.2d 1087; Mitchell v Mitchell, 170 A.D.2d 585). Under the circumstances of this case, whether, as the defendant contended, the required change has actually occurred is determined by comparing the defendant's financial status at the time of the divorce with his financial circumstances at the time of the motion for modification of the prior order (see, Schnoor v Schnoor, 189 A.D.2d 809, citing Alexander v Alexander, 134 A.D.2d 796).
The defendant has not met his burden here, principally because he revealed only vague and unsubstantiated financial information to the court before, during, and after the trial. Such minimal information does not provide a means for the comparison of the defendant's financial circumstances between the granting of the divorce judgment in January 1991 and his request for modification in April 1991, the relevant time interval.
We have examined the defendant's remaining contentions concerning the appointment of a Law Guardian for the parties' child and whether an accounting should be directed of their escrow fund, and find them lacking in merit. Bracken, J.P., Ritter, Copertino and Santucci, JJ., concur.