McCarthy v. McCarthy , 783 N.Y.S.2d 281 ( 2004 )

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered August 6, 2003, which, inter alia, confirmed that part of the Special Referee’s report recommending denial of plaintiffs application for a downward modification of alimony, rejected that part of the report recommending denial of defendant’s application for counsel fees, and awarded defendant counsel fees of $30,000, unanimously affirmed, with costs.

A downward modification of alimony was properly denied for failure to make the showing required of plaintiff in the parties’ 1978 separation agreement, incorporated but not merged into their 1978 divorce judgment, namely, “a substantial downward change in his financial circumstances.” Indeed, plaintiff’s income now is more than twice what it was in 1978. Plaintiff argues that his current income is derived from assets rather than earnings, but, under the circumstances, including, in particular, plaintiffs continued maintenance of a lavish lifestyle, such cannot be considered a substantial downward change. The award of attorneys’ fees was properly based on the foregoing considerations and the parties’ relative financial circumstances (see Dunnan v Dunnan, 293 AD2d 345 [2002]). Concur— Buckley, P.J., Mazzarelli, Andrias, Williams and Sweeny, JJ.