NY Daily Record Since 1908
A judge has denied a man’s request to reduce payments to his ex-wife required by their divorce agreement, even though the man claims she is living “high on the hog.”
Frank Burgio, who is represented by attorney Charles A. Schiano Sr., claims there has been a substantial change in his earning capacity.
In the couple’s judgment of divorce in 2017, Frank Burgio was required to pay $380 every two weeks as spousal maintenance.
Burgio claims his annual income was slightly more than $73,000 at the time of the divorce but dropped to $69,030 in 2019. Burgio claims his total income in 2020 will only be about $48,000.
Burgio claims the $25,000 reduction in his income constitutes a change in circumstances that justifies a reduction or abolition of his maintenance payments.
Burgio also claims he supports his children and his grandchild. His ex-wife, Carrie M. Burgio, who is represented by attorney Maureen Pineau, claims her ex-husband was $2,280 behind in maintenance payments by mid-September.
In New York, maintenance payments can only be changed when compliance with the order creates an “extreme hardship” for the obligated spouse, state Supreme Court Justice Richard A. Dollinger wrote in the decision.
“The party seeking modification bears the burden of proving extreme hardship. When assessing the merits for maintenance modification, the court must assess the cause of the hardship,” Dollinger wrote.
New York courts have held that a substantial change in circumstances may be measured by comparing the parties’ financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued, according to the decision.
Frank Burgio’s “allegations fall short of establishing an extreme hardship,” Dollinger wrote.
Frank Burgio claims his ex-wife owns a more expensive house and two cars while he has voluntarily supported his emancipated children and grandchildren.
“However, these voluntary expenditures — while laudable and appreciated by a father and grandfather — do not equate with the ‘extreme hardship’ necessary to justify a modification of maintenance,” Dollinger wrote. “There is no evidence of the husband’s inability to pay for his accommodations or his daily living expenses. There is no evidence of increased debt or reliance on credit cards to finance his lifestyle.”
There is no evidence that the maintenance payments will bring the husband below the poverty line or compel him to liquidate assets or incur huge unmanageable debt, Dollinger found.
Extreme hardship “calls for a substantial dislocation of the financial circumstances so that the litigant is nearly without resources or shelter,” Dollinger wrote.
Frank Burgio “alleges, in essence, that she does not need the money and leads an extravagant lifestyle,” Dollinger wrote.
“The fact that the former wife may live ‘high on the hog’ — a fact hotly contested by the former wife — does not justify a modification of maintenance, which was part of the settlement of a 35-year marriage less than four years ago,” Dollinger wrote.
Dollinger denied Frank Burgio’s request to reduce the payments and granted a judgment for $2,280 for unpaid maintenance, plus any other unpaid maintenance which has accumulated.
The Court also awards the wife $1,250 in legal fees to defend this application and awards costs in the form of $45 fee for her cross-motion.
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