Stone v. Stone

Kane, J.

Appeal from an order of the Family Court of Rensselaer County (Reeves, J.), entered February 27, 1984, which, inter alia, dismissed respondent’s cross petition for modification of his support obligation.

The parties herein were divorced in 1975 and, pursuant to the judgment of divorce, respondent was to provide $30 per week alimony for petitioner. Thereafter, by petition dated May 25, 1983, respondent applied to Family Court for a modification of the alimony provision in the divorce decree based on changed circumstances. By decision dated August 23,1983, Family Court dismissed this petition, finding that respondent “failed to show the change of circumstances to warrant modifying the decree”.

Respondent apparently failed to make payments and, by petition dated October 24, 1983, petitioner sought enforcement of respondent’s alimony obligation. Respondent then filed a cross petition for downward modification of his support obligation. This cross petition was dismissed on the ground that the issues raised by the cross petition had been addressed by Family Court only five months earlier. This appeal ensued.

Family Court’s determination must be affirmed. A review of the record reveals that respondent merely sought to relitigate the issues underlying Family Court’s prior order. Accordingly, Family Court properly dismissed the cross petition (Matter of Miller v Miller, 36 AD2d 832, 833; Gargiulo v Gargiulo, 18 AD2d 1013; Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Part I, Family Ct Act § 451, p 338).

Order affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.