Lee v. Lee , 891 N.Y.2d 379 ( 2009 )

The downward modification of spousal maintenance was improperly granted as the record does not support the finding that petitioner demonstrated a “substantial change in financial circumstances” as required in the parties’ stipulation with respect to maintenance, which was merged into the judgment of divorce. Indeed, petitioner’s current overall income is greater than his income at the time of the divorce and he continues to maintain a lavish lifestyle (see McCarthy v McCarthy, 11 AD3d 402 [2004], lv dismissed in part and denied in part 4 NY3d 793 [2005]; Dunnan v Dunnan, 293 AD2d 345 [2002]). Nor does respondent’s postdivorce receipt of social security benefits and payments from petitioner’s pension constitute a substantial change in financial circumstances sufficient to have warranted the downward modification (see Block v Block, 277 AD2d 87 [2000]; Wells v Wells, 242 AD2d 934 [1997]).

The denial of respondent’s application for counsel fees was a provident exercise of discretion under the circumstances (see Matter of Lawrence v Lawrence, 187 AD2d 995 [1992]). Concur— Mazzarelli, J.P., Nardelli, Catterson, DeGrasse and Román, JJ.