Lawrence v. Lawrence

Order unanimously affirmed with costs. Memorandum: Family Court properly dismissed petitioner’s application for an upward modification of respondent’s child support obligation. Petitioner failed to justify an award for support in excess of that provided for in the agreement by establishing an unanticipated and unreasonable change of circumstances and a concomitant need (see, Matter of Boden v Boden, 42 NY2d 210, 213; Rubin v Rubin, 119 AD2d 152, 155, affd 69 NY2d 702).

Whether counsel fees should be awarded under Family Court Act § 438 (a) is a matter for the discretion of Family Court (see, Goldstein v Goldstein, 123 AD2d 739). Because the record indicates that both parties have sufficient assets and means to pay their respective expenses, the court properly exercised its discretion in denying petitioner’s application for counsel fees (see, Gallina v Gallina, 162 AD2d 219, 223; Matter of Whittaker v Feldman, 113 AD2d 809, 812). (Appeal from Order of Erie County Family Court, Manz, J. — Child Support.) Present — Callahan, J. P., Green, Balio, Davis and Doerr, JJ.