Opinion
01-05248, 01-06614
Submitted May 2, 2002
June 3, 2002
In an action for a divorce and ancillary relief, the plaintiff appeals from so much of (1) an order of the Supreme Court, Westchester County (Shapiro, J.), entered May 3, 2001, as denied that branch of his motion which was to reduce his monthly maintenance obligation to the defendant and granted that branch of the defendant's motion which was for an attorney's fee, and (2) an order and amended judgment (one paper) of the same court, dated May 29, 2001, as granted that branch of the defendant's motion which was to amend the judgment of divorce to provide that it is not modifiable with respect to any provision which affects spousal support, and enjoined either party from seeking such modification.
Franklin, Weinrib, Rudell Vassallo, P.C., New York, N Y (Richard A. Abrams of counsel), for appellant.
Fredman Kosan, LLP, White Plains, N.Y. (Neil A. Fredman of counsel), for respondent.
FRED T. SANTUCCI, J.P., ANITA R. FLORIO, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the order and amended judgment is reversed insofar as appealed from, on the law, without costs or disbursements, the 16th decretal paragraph thereof, prohibiting modification of the judgment of divorce with respect to any provision which affects spousal support and enjoining the parties from seeking such modification, is deleted, and that branch of the defendant's motion which was to amend the judgment of divorce to prohibit such modification is denied.
The provision of the order and amended judgment which prohibits modification of the judgment of divorce and enjoins the parties from seeking modification is unenforceable, and therefore must be deleted (see Domestic Relations Law § 236(B)(9)(b); Heath v. Heath, 128 A.D.2d 587; Busetti v. Busetti, 108 A.D.2d 769; Pintus v. Pintus, 104 A.D.2d 866).
However, the plaintiff's application for a downward modification of his maintenance obligation was properly denied without a hearing. In the case of an application for a downward modification of a spousal maintenance obligation set pursuant to a stipulation or a separation agreement, it is the burden of the movant to demonstrate that the continued enforcement of that obligation would create an "extreme hardship" (Mishrick v. Mishrick, 251 A.D.2d 558; see Sheridan v. Sheridan, 225 A.D.2d 604; Matter of Zinkiewicz v. Zinkiewicz, 222 A.D.2d 684; Didley v. Didley, 194 A.D.2d 7). A court is required to conduct a hearing to determine whether a modification is warranted only when the movant presents genuine issues of fact (see Mishrick v. Mishrick, supra; Soba v. Soba, 213 A.D.2d 472; Grimaldi v. Grimaldi, 167 A.D.2d 443). Since the plaintiff failed to make a prima facie showing of extreme hardship, he was not entitled to a hearing on the issue (see Mishrich v. Mishrick, supra; Matter of Zinkiewicz v. Zinkiewicz, supra; Praeger v. Praeger, 162 A.D.2d 671).
The plaintiff's remaining contentions are without merit.
SANTUCCI, J.P., FLORIO, GOLDSTEIN and TOWNES, JJ., concur.