In the Matter of Mariann Cerroni, Appellant, v. Mario Cerroni, Respondent

In the Matter of Mariann Cerroni, Appellant, v Mario Cerroni, Respondent. [MAJORITY] — Order modified and, as modified, affirmed, without costs, in accordance with memorandum. All concur, Simons, J. P., not participating. Memorandum: In March, 1972 petitioner was awarded support pursuant to article 4 of the Family Court Act. In October of that year, she was awarded a judgment of separation which incorporated the Family Court support order and referred all future matters pertaining to support, custody and visitation to Family Court. Petitioner sought and was granted an increase in support in 1975. In 1978 she again sought and was granted an increase in support. This order required respondent to submit his school salary and income tax returns each year and to divide all increases in gross income evenly between the parties. Respondent did not appeal from this order. The order of March, 1981, from which petitioner appeals, provided that the division be determined by respondent’s take-home pay from his teacher’s salary. Petitioner argues, and we agree, that this is, in effect, a downward modification of the 1978 support award. Any modification of the 1978 order is improper because neither party demonstrated any change in circumstances since the prior support award of 1978 (see Matter of Brescia v Fitts, 56 NY2d 132; Family Ct Act, § 461, subd [b], par [ii]; § 466, subd [a]). We have examined petitioner’s other contentions and find them to be without merit. (Appeal from order of Jefferson County Family Court, Gilbert, J. — modify support.) Present — Simons, J. P., Hancock, Jr., Callahan, Moule and Schnepp, JJ.