Opinion
March 21, 1977
In a matrimonial action in which the plaintiff was previously granted a judgment of divorce, he appeals from stated portions of an order of the Supreme Court, Nassau County, entered January 14, 1976, which, after a hearing, inter alia, granted to specified degrees various portions of defendant's motion for enforcement of the said judgment and denied his cross motion to modify that judgment. Order affirmed insofar as appealed from, with costs. In our opinion the order appealed from was properly made on the evidence and the law, particularly in view of the prior litigation between the parties, and the evidence and issues presented and determined therein. Thus, the amount of alimony and child support was agreed upon and incorporated into the 1970 judgment of divorce, based upon plaintiff's representation that his gross income for that year was $25,000 (it turned out to be considerably higher). In the 1973-1974 litigation and appeal, the one-third escalator obligation was recognized and enforced and plaintiff's efforts to obtain a downward modification were rejected. Plaintiff's gross income for 1970-1975 was well in excess of $25,000 annually; the gross for the five-year period was over $400,000. The burden of showing changed circumstances was on plaintiff, who has shown only vastly improved circumstances, whereas the fact of defendant's school teaching job (allegedly a new circumstance) was presented to the Family Court in the proceedings leading to Judge Tese's February 13, 1973 order and the appeal therefrom (see Matter of Smutny v Smutny, 43 A.D.2d 590). Martuscello, Acting P.J., Cohalan, Rabin and Mollen, JJ., concur.